Conlaw Flashcards
first amendment challenge
ROLE OF FEDERAL COURTS IN CONSTITUTIONAL CASES
first amendment challenge
ROLE OF FEDERAL COURTS IN CONSTITUTIONAL CASES
The plaintiff is asserting a First Amendment “facial challenge” to an overbroad law
definition
FEDERALISM
= the relationship between the federal government and state government
3 perspectives
FEDERALISM
- federal laws
- state laws
- tax laws
flowchart
FEDERALISM
If the constitutionality of a statute is at issue, ask: is the statute state or federal?
FEDERAL = then ask 2 further questions
- Does the Constitution authorize Congress to regulate in this area?
- If so, does this particular statute offend any constitutional check on federal power?
STATE = then only ask 1 thing
1. Does this particular statute offend any constitutional check on state power?
does the constitution authorize congress to regulate in this area?
(3 principles/takeaways)
FEDERAL LAWS // FEDERALISM
- The federal government is a government of limited, enumerated powers.
- The Constitution prescribes several “enumerated” areas in which Congress may regulate, the 7 most important of which are:
1. Commerce Clause
2. Spending Clause
3. Taxing Clause
4. War Powers
5. Treaty Power
6. Post-Civil War Amendments
7. Property Clause - The following notably DON’T confer authority on the federal government to regulate
1. Police Power
2. General Welfare (EXCEPT in connection with the Spending Clause)
3. Necessary & Proper Clause standing alone
congressional regulation of interstate commerce
FEDERAL LAWS // FEDERALISM
Under the commerce clause, congress may regulate
- Anything that crosses state lines (physically, electronically, or otherwise)
- Instrumentalities of interstate commerce (e.g., planes, trains, telephone calls, internet, etc.)
- Any “economic” or “commercial” activity that, in the aggregate, has a substantial effect on interstate commerce
Aggregation principle
FEDERAL LAWS // FEDERALISM
- Under this test, congress can regulate virtually any activity
- Its power is plenary
Commerce definition
FEDERAL LAWS // FEDERALISM
For purposes of the commerce clause, the term “commerce” includes “every species of commercial intercourse,” including transportation and traffic
limitations to aggregate test
FEDERAL LAWS // FEDERALISM
- applies only to activities that are “economic” or “commercial” in nature
- The commerce clause may not be used to compel persons to purchase an unwanted product
examples/non-examples of activities that are economic/commercial
FEDERAL LAWS // FEDERALISM
- A federal statute banning possession of guns in school zones is NOT economic in nature
- A federal statute creating a civil remedy for victims of gender-motivated violence is NOT economic in nature
- A federal statute criminalizing possession of marijuana is economic in nature
congressional regulation of foreign commerce
FEDERAL LAWS // FEDERALISM
Congress’ power to regulate foreign commerce = exclusive
AKA with few minor exceptions, states have no power to regulate or interfere with foreign commerce
2 key takeaways about the spending clause
FEDERAL LAWS // FEDERALISM
- congress may spend for the general welfare of the nation and to pay debts
(NOTE = this is the only time congress may rely on the “general welfare” to act) - The spending clause is an independent source of federal power AKA spending is not limited to the other enumerated powers
limitations on the spending clause
FEDERAL LAWS // FEDERALISM
the spending clause may be used to “regulate” (i.e., encourage) indirectly what Congress cannot regulate directly, subject to the following limitations
- The conditions imposed by Congress must be “RELATED” to the purpose of the program AND
- The federal state must give states a “GENUINE CHOICE” and not be unduly coercive
example of unduly coercive law enacted under spending clause
FEDERAL LAWS // FEDERALISM
a federal law that threatens to withhold 100% of federal Medicaid funds from states refusing to expand their Medicaid programs is unduly coercive because it does not give states a “genuine choice”)
taxing clause
FEDERAL LAWS // FEDERALISM
for UBE purposes, congress may tax anything as long as the tax is reasonably related to raising revenue, regardless of any other motives congress may have had
EXAMPLE = to tax something out of existence
EXCEPTION = taxes that violate first amendment
war powers
FEDERAL LAWS // FEDERALISM
- in the theater of war, congress’s powers are virtually unlimited
BUT are shared with the president - on the homefront, congress has significant power both during and after war to remedy the effects of war, including the economic effects
(the commerce clause has probably superseded the war powers on the homefront)
treaty power
FEDERAL LAWS // FEDERALISM
- congress has the power to pass laws to enforce treaties
- a treaty cannot confer on congress authority to act in a manner inconsistent with a specific provision of the constitution
2 key sections of post-civil war amendments
FEDERAL LAWS // FEDERALISM
- section 5 of the 14th Amendment
2. section 2 of the 13th Amendment
section 5 of the 14th Amendment
FEDERAL LAWS // FEDERALISM
section 5 of the 14th Amendment authorizes congress to prohibit discrimination by state and local governments, but may NOT be used to regulate private discrimination
PRO TIP: section 5 of the 14th amendment is usually a wrong answer on the MBE
UNLESS the question is testing exceptions to the 11th Amendment OR the federal government is regulating PURELY state activities
section 2 of the 13th Amendment
FEDERAL LAWS // FEDERALISM
Section 2 of the 13th Amendment may be used to regulate ANY private discriminatory behavior if such behavior constitutes a “badge or incident” of slavery,
- such as refusing to
1. rent or sell property, or
2. contract with, or
3. admit a child to a private school, or
4. employ a person
because of race
commerce clause v. section 2 of the 13th amendment
FEDERAL LAWS // FEDERALISM
unlike the commerce clause, section 2 of the 13th Amendment does not require a showing that the discrimination has a “substantial effect” on interstate commerce
if congress passes a law prohibiting racial discrimination by private entities, the best constitutional authority for such state is usually the commerce clause
- if the commerce clause will not work, the section 2 of the 13th amendment is the best answer
property clause
FEDERAL LAWS // FEDERALISM
- authorizes congress to pass any laws relating to the ownership, transfer, disposal, or use of federal property (real, personal, intangible)
- thus, congress has “police” powers in DC and federal parks, military bases, etc.
assuming the federal government had authority to regulate in this field, does this particular statute offend any constitutional check on federal power?
(key checks on federal government)
FEDERAL LAWS // FEDERALISM
There are several checks on federal power in the constitution that apply to BOTH the federal government and state governments, including
- Due process clause
- Equal protection clause (via reverse incorporation)
- First amendment
- Takings clause
A couple of checks that apply ONLY to the federal government include
- 10th Amendment
- 11th Amendment
10th amendment general rule
FEDERAL LAWS // FEDERALISM
- The 10th amendment provides that state governments have all power not conferred upon the federal government (nor prohibited to the states) by the Constitution
- Today, the 10th Amendment is simply a truism
AKA states have those powers not given to the federal government but since federal power has been construed so broadly, there is little left for the states
PRO TIP: Thus, the 10th amendment rarely limits congress’ power, and is usually a wrong answer on the MBE
modern limits on congressional power under the 10th amendment
FEDERAL LAWS // FEDERALISM
There are 2 modern limits on congress’ powers under the 10th amendment (or federalism generally)
- NY v. US
- PRINTZ v. US
NY v. US’s limitation on 10th amendment
FEDERAL LAWS // FEDERALISM
- the 10th Amendment bars Congress from ordering state legislatures to pass or not pass laws
AKA Congress may not COMMANDER state legislatures and may not issue “DIRECT ORDERS” to state legislatures - BUT the federal could
(a) pass the law itself, assuming it has such authority, which it often will OR
(b) encourage the state to pass (or not pass) such laws under its spending power
example of congress commandeering/issuing “direct orders” to state legislatures
FEDERAL LAWS // FEDERALISM
a federal law prohibiting state legislatures from authorizing sports gambling schemes
PRINTZ v. US’s limitation on 10th amendment
FEDERAL LAWS // FEDERALISM
10th Amendment bars Congress from compelling state executive officials (e.g., county sheriffs) to enforce federal laws
BUT the federal government could
(a) enforce the law itself OR
(b) encourage state officials to enforce such laws under its spending power
scope of modern limitations to congressional power under the 10th amendment
FEDERAL LAWS // FEDERALISM
- NY and PRINTZ are limited to federal mandates that apply only to state governments
- In RENO, the Court upheld a law prohibiting states from selling DMV information because unlike the laws in NY and PRINTZ, this law
(a) applies to both states AND private companies and
(b) did not impose an AFFIRMATIVE burden on the states - State courts, unlike state legislatures and executives, are bound to enforce federal law under the supremacy clause
- Moreover, state courts must hear cases involving federal claims—they may NOT discriminate against actions brought to enforce federal law
11th amendment general rule
FEDERAL LAWS // FEDERALISM
State governments may not be sued for MONEY DAMAGES for federal claims
11th amendment key takeaways
FEDERAL LAWS // FEDERALISM
- a federal claim may not be brought against a state by
(a) citizens of other states
(b) citizens of that state
(c) foreign citizens - the 11th amendment (and state sovereign immunity) bars federal claims brought by these parties against a state in federal court, state court, or federal administrative tribunals
(e. g. federal maritime commission)
11th amendment exceptions
FEDERAL LAWS // FEDERALISM
times when federal claims may be brought against a “state”
- A suit for PROSPECTIVE injunctive relief against a state official in his or her official capacity including an order to pay—in the future—any money needed to comply with the injunction)
- Money damages may be sought from a state official personally, but not if such damages would be paid out of the state treasury
- The state expressly waives its sovereign immunity
- Suits brought by the U.S. or other states
- Congressional abrogation of state sovereign immunity
- Proceeding arising under federal bankruptcy law
- Counties, cities, etc. are not protected by the 11th Amendment and thus are subject to liability for federal claims
Suits brought by the U.S. or other states
(11th amendment exceptions)
FEDERAL LAWS // FEDERALISM
A state may sue another state for money damages in an original action in the Supreme Court
Congressional abrogation of state sovereign immunity
(11th amendment exceptions)
FEDERAL LAWS // FEDERALISM
- Congress may authorize private persons to sue state governments for money damages BUT only in some very limited circumstances
- These suits may arise only out of congress’ power under section of the 14th amendment and for the UBE are probably limited to suits for racial or gender discrimination or access to courts by disabled individuals
- Congress must make a “clear statement” of its intent to abrogate the 11th amendment
example of proceeding arising under federal bankruptcy law
(11th amendment exceptions)
FEDERAL LAWS // FEDERALISM
adversary proceeding brought by bankruptcy trustee to set aside alleged preferential transfers made to state agencies was not barred 11th Amendment
what’s the ultimate inquiry if a state law is at issue?
STATE LAWS // FEDERALISM
If a state law is at issue, only one question need be asked
= is there a specific check in the Constitution prohibiting such a law?
checks on state power
STATE LAWS // FEDERALISM
There are several checks on state power in the Constitution that apply to BOTH the federal government and the state governments, including the
- Due Process Clause
- Equal Protection Clause
- First Amendment
- Takings Clause
But there are several checks that apply ONLY to the state governments, namely:
- Supremacy Clause
- Dormant Commerce Clause
- Privilege and Immunities Clauses
- Contracts Clause
supremacy clause
STATE LAWS // FEDERALISM
AKA preemption issues
federal laws are superior to state laws
2 types of preemption
STATE LAWS // FEDERALISM
- express preemption
2. implied preemption
express preemption
STATE LAWS // FEDERALISM
= if a valid federal law expressly preempts state laws
Express preemption clauses are narrowly construed, particularly in areas traditionally regulated by states
implied preemption
STATE LAWS // FEDERALISM
= If a valid federal law impliedly preempts state laws because
- Impossibility preemption
- Obstacle preemption
- Field preemption
Impossibility preemption
STATE LAWS // FEDERALISM
= It is impossible to comply with both the state and federal laws without violating one
Obstacle preemption
STATE LAWS // FEDERALISM
= the state law is an obstacle to the objective of the federal law
Field preemption
STATE LAWS // FEDERALISM
Congress has impliedly taken over the entire field with a comprehensive law
Example = immigration
2 purposes of dormant commerce clause
STATE LAWS // FEDERALISM
- It is authority for Congress to pass laws regulating interstate commerce and
- It impliedly limits states’ authority to interfere with interstate commerce
dormant commerce clause analysis for state laws
STATE LAWS // FEDERALISM
A. does the state law discriminate in purpose or effect against interstate commerce or out-of-staters?
- If so = the state law is invalid
B. if the law is not discriminatory, the state law is valid unless it imposes an “undue burden” on interstate commerce
- Test = a nondiscriminatory state law will be invalidated only if the local benefits are slight and the burden on interstate commerce is significant
- Under this test, a court may invalidate a state law if
a. There are alternatives that impose less burden on interstate commerce OR
b. The law conflicts with the laws of other states (and thus there’s no national uniformity)
2 examples of state discrimination in violation of the dormant commerce clause analysis
STATE LAWS // FEDERALISM
Examples = a state discriminates (and is invalid) if it
- hoards valuable things like jobs or natural resources
- insulates itself from regional or national problems like garbage, nuclear waste, competition
3 exceptions to the dormant commerce clause
STATE LAWS // FEDERALISM
A state (or local government) may discriminate in 3 instances:
- Congressional authorization
- Market participant
- Public entity
congressional authorization exception to dormant commerce clause
STATE LAWS // FEDERALISM
= Congress has authorized states to discriminate against interstate commerce
BUT congress may not authorize violations of other constitutional provisions, such as Article IV’s Privileges and Immunities Clause or the Equal Protection Clause
market participant exception to dormant commerce clause
STATE LAWS // FEDERALISM
= The state is a “market participant” as opposed to a market regulator
- In such cases, a state may discriminate in favor its own residents
- These are situations in which the state itself is the seller or provider or goods or services
example of market participant exception to dormant commerce clause
STATE LAWS // FEDERALISM
a state-owned cement plant
2 limitations to the market participant exception to dormant commerce clause
STATE LAWS // FEDERALISM
the “market participant” exception does NOT authorize 2 things:
- State discrimination as to “fundamental rights”
- EXAMPLES = private employment, practice of law, civil liberties
- REASONING = because such discrimination violates Article IV’s Privileges and Immunities Clause - States to impose discriminatory regulations in a downstream market
- EXAMPLE = Alaska could not require buyers of Alaskan timber to process the timber in Alaska
2 examples of public entity exception dormant commerce clause
STATE LAWS // FEDERALISM
= the state favors a public entity
EXAMPLES =
- A county ordinance requiring waste haulers collecting trash in that county to bring trash to state-created waste facility
- A state income tax exemption for income derived from in-state bonds, but not out-of-state bonds
where is the privileges & immunities clause?
STATE LAWS // FEDERALISM
TRICK, THERE’S 2
- Article IV
- 14th Amendment
what does the article iv privileges & immunities clause prevent?
STATE LAWS // FEDERALISM
This clause prevents discrimination by states against nonresidents as to “fundamental rights” relating to important commercial activities
when will a state law be invalidated under the article iv privileges & immunities clause?
STATE LAWS // FEDERALISM
A state law discriminating against nonresidents with regard to such a “fundamental right” will be invalidated UNLESS the state shows a substantial justification for the discriminatory treatment and that there are no less discriminatory means to solve the problem
3 examples of invalidated laws under the article iv privileges & immunities clause
STATE LAWS // FEDERALISM
the Article IV Privileges and Immunities Clause has been used to invalidate
- A state law charging nonresidents substantially more for a commercial fishing license than residents
- BUT NOT a state law charging nonresidents substantially more for a recreational hunting license - A state law requiring state residency to be a licensed to practice law in the state
- A state (or local) law requiring private employers to give hiring preference to state residents
what does the 14th amendment privileges & immunities clause prohibit?
STATE LAWS // FEDERALISM
This clause prohibits states from denying their citizens the privileges and immunities of national citizenship
SUCH AS the right to interstate travel and the right to vote in federal elections
what is a typical 14th amendment privilege & immunities clause issue?
STATE LAWS // FEDERALISM
This clause protects the right of newly arrived citizens to enjoy the same privileges and immunities that are enjoyed by long-term citizens of the state
EXAMPLE = It was used to invalidate a CA law limiting new residents for their first year of living in CA to welfare benefits they would have received in the state of their prior residence
what is not included in the definition of citizen in privileges & immunities clauses?
STATE LAWS // FEDERALISM
Corporations and aliens are NOT considered “citizens” for purposes of the privileges and immunities clauses
contracts clause
STATE LAWS // FEDERALISM
= no state or local government shall impair the obligations of contracts
- The Contracts Clause does NOT apply to the federal government
- The Contracts Clause applies only to existing contracts, not future contracts or future profits
contracts clause analysis for private contracts
STATE LAWS // FEDERALISM
If a state law impairs the obligations of a contract between 2 private parties, courts apply the following test:
(1) does the law “substantially” impair a party’s rights under an existing contract?
(2) if so, is the law a reasonable and appropriate means of promoting a significant and legitimate public purpose?
(This test is similar to the rational basis test, which means courts are similarly highly unlikely to invalidate a state law that impairs a private contract)
contracts clause analysis for public contracts
STATE LAWS // FEDERALISM
If a state law impairs a contract in which the state is a party, the law will be upheld only if it is
- REASONABLE and
- NECESSARY to serve
- an IMPORTANT PUBLIC purpose
(This test is similar to strict scrutiny)
to whom does the ex post facto clause apply?
STATE LAWS // FEDERALISM
federal and state
what is an ex post facto law?
STATE LAWS // FEDERALISM
An ex post facto law imposes criminal punishment for an act that occurred before the law became effective
when is the ex post facto clause violated?
STATE LAWS // FEDERALISM
The clause is also violated where the government
- prescribes greater punishment than was prescribed when the act was committed,
- reduces the evidence necessary for a conviction
- increases the statute of limitations for a crime, or
- retroactively reduces an inmate’s “good time” or “early release” credits
to whom does the bill of attainder clause apply?
STATE LAWS // FEDERALISM
federal and state
what is a bill of attainder?
STATE LAWS // FEDERALISM
= a legislative act that inflicts punishment on named individuals or on easily identifiably members of groups
Examples of punishment = imprisonment, punitive confiscation of property, prohibition from employment or vocational opportunities
3 key takeaways from the full faith & credit clause
STATE LAWS // FEDERALISM
- Final judgments on the merits rendered by a state court with jurisdiction MUST be recognized and enforced by other states as a matter of right
- A second court may not retry ANY matter, factual or legal, properly at issue in the first proceeding
- In other words, the first judgment serves as a bar to suits brought in other states
to whom does the full faith & credit clause apply?
STATE LAWS // FEDERALISM
By its terms, the Full Faith and Credit Clause applies exclusively to states, but a federal statute requires recognition of judgments between state and federal courts
state regulation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM
A state has no power to regulate the activities of the federal government, unless Congress consents
principles for state taxation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM
A state may not tax the federal government, including its land or instrumentalities
test for unconstitutionality of state taxation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM
Test = if the money to pay a state tax comes out of the federal treasury, the state tax is unconstitutional
2 exceptions for state taxation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM
- A state may impose non-discriminatory income taxes (i.e. the tax does not discriminate against persons employed by the U.S.) on the salaries of federal employees (paid by the employee)
- A private contractor working for the federal government can be compelled to pay state sales tax if the contractor is working on a cost-plus basis
principle for federal laws
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM
The federal government may tax or regulate state government activities
AS LONG AS the tax or regulation
applies to BOTH the private sector and public sector
state taxes that discriminate against interstate commerce
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM
AKA a higher rate for interstate commerce than for intrastate commerce
= violate the dormant commerce clause (and thus are unconstitutional) UNLESS such discrimination has been approved by congress
2 examples of state taxes that discriminate against interstate commerce
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM
- use tax
2. income taxes
what are constitutional limitations/requirements on imposing a use tax?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM
if a state imposes a use tax, the rate cannot exceed the state’s sales tax and a credit must be given for the sales tax paid in the other state
what are constitutional limitations/requirements on imposing an income tax?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM
residents who pay taxes in another state for income earned in that state must be given a credit against state AND local income taxes in their home state to avoid double taxation
constitutional limitations nondiscriminatory taxes
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM
= a state may tax interstate commerce and interstate businesses IF
- There’s a SUBSTANTIAL NEXUS btwn the activity/property taxed and the state
- The tax must be FAIRLY APPORTIONED
- The tax must be FAIRLY RELATED to the services or benefits provided by the state
how is a substantial nexus established in the nondiscriminatory taxes analysis?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM
such a nexus is established when the taxpayer avails itself of the privilege of carrying on business in that jurisdiction, including a significant quantity of internet sales
when is a tax fairly apportioned in the nondiscriminatory taxes analysis?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM
the tax should be based on the extent of the taxable activity or property in the state
(otherwise, the taxpayer would be subject to multiple taxation)
THE BASICS 5 topics (+ pro tip)
[separation of powers]
- Executive powers (generally)
- Foreign affairs
- Checks on the president’s powers
- President’s pardon power
- Speech and debate clause
Pro tip = separation of powers questions are usually issue-specific and are modeled after actual SC cases
test for issue of whether the president have the power to make law
(general rules for executive powers)
SEPARATION OF POWERS
If the president is legislating (i.e., issuing executive orders affecting a private person’s legal rights), use the following test:
- if Congress has explicitly or implicitly approved the president’s action, the president has the full power of federal government to make law
- if Congress has been silent on the issue, the president may be able to make law, depending on history and tradition (i.e., have prior presidents taken such actions without Congressional approval?)
- if Congress has disapproved the president’s action (e.g., by rejecting a similar statute), the president may rely only on his own constitutional power to make laws; in such cases, the president’s action is probably unconstitutional
rule for impoundment of funds
(general rules for executive powers)
SEPARATION OF POWERS
If Congress “directs” the president to spend money on a project, the president must spend the money; in other words, the President does not have authority to “impound” funds Congress has ordered spent
5 key issues
(special rules for executive powers)
SEPARATION OF POWERS
- May congress increase the executive’s power to make law?
- Legislative vetoes
- Line-item veto
- Appointment of executive officials
- Removal of executive officials
May congress increase the executive’s power to make law?
(special rules for executive powers)
SEPARATION OF POWERS
Congress may delegate law-making power to the executive branch as long as it establishes some standard for such decision-making
Definition of legislative veto
(special rules for executive powers)
SEPARATION OF POWERS
A legislative veto occurs when Congress delegates law-making authority to the executive branch, but keeps the power to overrule the executive by a one-house or two-house or committee veto
Rule for legislative veto
(special rules for executive powers)
SEPARATION OF POWERS
Legislative vetoes are unconstitutional under the Bicameral Clause and/or the Presentment Clause
Rule for line-item veto
(special rules for executive powers)
SEPARATION OF POWERS
A federal statutory line-item veto is unconstitutional
Example of principal officers
(special rules for executive powers)
SEPARATION OF POWERS
Cabinet members
Rule for appointment of principal officers
(special rules for executive powers)
SEPARATION OF POWERS
The president nominates and the senate confirms
Definition of inferior officers
(special rules for executive powers)
SEPARATION OF POWERS
= positions created by congress
such as the independent counsel
2 rules for appointment of inferior officers
(special rules for executive powers)
SEPARATION OF POWERS
- Congress may give the appointment power to president alone, a department head, or the courts
- Although Congress may appoint its own officers to carry on internal legislative tasks, Congress may NOT appoint anyone with administrative, enforcement, regulatory, or executive duties
General rule for removal of executive officials
(special rules for executive powers)
SEPARATION OF POWERS
Congress may require the president to have “good cause” to fire an employee of the executive branch if the position requires some independence from the president
(e.g., an independent counsel or a person who has quasi-judicial duties)
Exception for removal of executive officials
(special rules for executive powers)
SEPARATION OF POWERS
Congress may not retain the power to remove an executive official; it only has impeachment power
2 issues
(foreign affairs)
SEPARATION OF POWERS
2 issues
- Treaties and executive agreements
- War powers
process for treaties
(foreign affairs)
SEPARATION OF POWERS
Treaties are signed by the president and ratified by the senate
hierarchy for treaties and executive orders, etc.
(foreign affairs)
SEPARATION OF POWERS
If laws are in conflict, the following preeminence governs:
- U.S. Constitution
- Federal statutes/treaties (last-in-time controls)
- Federal executive agreements/order
- Federal regulations
- State laws
executive agreements
(foreign affairs)
SEPARATION OF POWERS
- President may use executive agreements as substitutes for treaties
- No senate ratification is required, and the president may use these agreements as the basis for issuing executive orders (domestic regulation)
power to recognize foreign states
(foreign affairs)
SEPARATION OF POWERS
- The power to recognize foreign states lies exclusively the president
- The president and his subordinates are the exclusive official representatives of the U.S. in foreign affairs
war powers
(foreign affairs)
SEPARATION OF POWERS
The war powers are shared between the president and congress
- Congress declares war and allocates money for the military
- The president alone controls troops and deployment
3 issues
(checks on the president’s powers)
SEPARATION OF POWERS
- Criminal prosecutions
- Civil actions
- Impeachment
immunity in criminal prosecutions
(checks on the president’s powers)
SEPARATION OF POWERS
The president is probably immune from criminal prosecution while in office
executive privilege in criminal prosecutions
(checks on the president’s powers)
SEPARATION OF POWERS
the president’s communications and papers are presumptively privileged
BUT the president must comply with subpoenas from criminal courts or grand juries
immunity in civil actions
(checks on the president’s powers)
SEPARATION OF POWERS
- The president has absolute immunity from civil liability for claims (at least those arguably based on official actions) arising while in office
- President aids and advisors have a qualified immunity from civil damages
- Such immunity will not protect them for violations of clearly established constitutional rights - The president is subject to civil liability for claims arising prior to taking office
impeachment
(checks on the president’s powers)
SEPARATION OF POWERS
- The president, vice-president, judges, and “officers” of the U.S. may be impeached
- The house “impeaches” (i.e., indicts) by a majority vote
- The senate convicts by a 2/3 vote
- Impeachment may be for high crimes, misdemeanors or treason, but these terms are defined exclusively by Congress, and such issues are political questions
president’s pardon power
SEPARATION OF POWERS
- The president has the power to pardon and commute sentences for federal crimes BUT not state crimes or civil liability
- The president’s pardon power may NOT be limited by Congress
- The president may not pardon a person for “crimes” for which he or she has been “impeached”
speech and debate clause
SEPARATION OF POWERS
- The Speech and Debate Clause protects members of the U.S. Congress from criminal or civil liability for all statements (oral or written) they make in the House or Senate
- The immunity extends to aides who engage in acts that would be immune if performed by the member of Congress
2 EXCEPTIONS
- The Speech or Debate Clause does not extend to state legislators
- Speeches and publications made outside of the House or Senate are not protected
what does this topic cover?
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
the relationship between governments and individuals
3 basic principles
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The U.S. Constitution contains numerous provisions designed to protect individual civil liberties
- Before examining particular provisions, 2 issues must be resolved
1. Who is bound by these constitutional provisions?
(AKA “State action” doctrine)
2. do these provisions apply to all governments—federal, state, and local?
(AKA “incorporation”) - U.S. constitution sets a minimum level of protection for individuals
(states are usually free to grant broader protections)
example of state granting broader protection than federal constitution
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
a state may require large private shopping centers to permit persons to exercise free speech rights on shopping center property
2 general principles
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The Constitution applies only to government ACTION (AKA doesn’t apply to government inaction)
- Also the Constitution generally does not apply to the actions or inactions of private individuals and companies
Instances where private individuals and companies will be considered “state actors” subject to the 14th amendment
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- if a private person or company is performing a traditional, EXCLUSIVE government function
- the government AFFIRMATIVELY authorizes, encourages, or facilitates an unconstitutional activity
example of when a private person or company is performing a traditional, EXCLUSIVE government function
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
operating a company town or conducting a primary election
4 examples of when government AFFIRMATIVELY authorizes, encourages, or facilitates an unconstitutional activity
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- court enforcement (equitable or legal) of a racially restrictive covenant in a deed or lease
- preemptory challenges (civil and criminal)
- the government leases space to a business that discriminates
- a private association that regulates high school athletics with mostly government members and funding
6 examples of when a private company or association will NOT be considered a “state actor”
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The government provides its funding, even 99% of its funding
- The government has licensed the company
- The government has approved the company’s name and charter
- The association has government members
- The government regulates the company
- The company is working under a government contract
incorporation
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
To whom does the Bill of Rights apply?
- By its terms, the Bill of Rights applies only to the federal government.
- The Supreme Court, however, has held that all of the Bill of Rights have been incorporated into the 14th Amendment and thus made applicable to state and local governments, except for the:
1. Fifth Amendment’s right to a grand jury in a criminal case
2. Seventh Amendment’s right to a jury in a civil case
What are the constitutional areas in which understanding the levels of scrutiny is essential?
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Due Process Clause
- Equal Protection Clause
- First Amendment
3 levels of scrutiny
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Rational basis test
- Intermediate scrutiny
- Strict scrutiny
The Rational Basis Test
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- the CHALLENGER must prove that the law
- is not RATIONALLY RELATED
- to ANY LEGITIMATE (aka permissible) government purpose (actual or conceivable)
(this is the default test in due process and equal protection cases)
in what cases is rational basis test the default test?
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
in due process and equal protection cases
Intermediate Scrutiny
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- the GOVERNMENT must prove that the law
- is SUBSTANTIALLY RELATED
- to an IMPORTANT government interest
Strict Scrutiny
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- the GOVERNMENT must prove that the law
- is NECESSARY (or NARROWLY TAILORED)
- to achieve a COMPELLING government interest
2 due process clauses in the constitution
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- 5th amendment
- 14th amendment
(the two clauses have been construed identically)
5th amendment DP clause
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Applies to the federal government
construed identically with 14th amendment DP clause
14th amendment DP clause
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Applies to state and local governments
construed identically with 5th amendment DP clause
2 parts of due process
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Procedural due process
2. Substantive due process
What does procedural due process require?
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
requires the government to use a fair process and procedures before depriving an individual of life, liberty, or property
What does substantive due process require?
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
designed to ensure that laws are reasonable and not arbitrary
2 principles of procedural due process
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Before the government may deprive an individual of liberty or property, the government must give the person NOTICE of termination and some form of a HEARING
- There is a right to procedural due process only when the government deprives an INDIVIDUAL of liberty of property
(there is no such right when the government acts general, like by changing the eligibility requirements for welfare benefits)
Liberty definition
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Freedom from confinement
Property definition/examples
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Government job
- Government benefits
- Government license
Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- welfare benefits = notice and an evidentiary hearing prior to termination
- Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
- suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
- prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
- driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
- termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
- termination of business license = pre-termination notice and some form of fair hearing
Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- welfare benefits = notice and an evidentiary hearing prior to termination
- Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
- suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
- prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
- driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
- termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
- termination of business license = pre-termination notice and some form of fair hearing
Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- welfare benefits = notice and an evidentiary hearing prior to termination
- Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
- suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
- prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
- driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
- termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
- termination of business license = pre-termination notice and some form of fair hearing
Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- welfare benefits = notice and an evidentiary hearing prior to termination
- Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
- suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
- prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
- driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
- termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
- termination of business license = pre-termination notice and some form of fair hearing
Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- welfare benefits = notice and an evidentiary hearing prior to termination
- Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
- suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
- prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
- driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
- termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
- termination of business license = pre-termination notice and some form of fair hearing
Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- welfare benefits = notice and an evidentiary hearing prior to termination
- Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
- suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
- prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
- driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
- termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
- termination of business license = pre-termination notice and some form of fair hearing
Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- welfare benefits = notice and an evidentiary hearing prior to termination
- Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
- suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
- prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
- driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
- termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
- termination of business license = pre-termination notice and some form of fair hearing
3 principles for fundamental rights
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- If a law directly and substantially impairs a “fundamental right,” the court will apply Strict Scrutiny and the law will probably be invalidated
- Fundamental rights are those rooted in the history and traditions of America
- They include not only those rights enumerated in the Bill of Rights, but also certain implied privacy rights
11 implied privacy rights included as fundamental rights
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- the right to control the education and upbringing of one’s children
- the right to acquire and use contraceptives (regardless of age)
- the right to marry (including same-sex marriages)
- the right to procreate (i.e., thus, no forced sterilization)
- the right to custody of one’s children (e.g., a grandparent visitation law has been found to violate this right)
- the right of family members to live together (includes extended family, but not unrelated persons)
- the right of a competent adult to refuse life sustaining medical treatment, hydration, and food
- right to engage in adult, consensual, non-commercial sex in one’s home
BONUS FACTS
- a state may require clear and convincing evidence of the patient’s intent to refuse life sustaining medical treatment, hydration, and food
- there is no right to commit suicide or for assistance to commit suicide
- a state may force parents to obtain medical care for children
Abortion analysis
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Although a woman has a constitutional right to decide to terminate a pregnancy, that right is subject to its own form of scrutiny:
- Test for PRE-viability regulations = does the regulation impose an UNDUE BURDEN (AKA a substantial obstacle) on the woman’s right
- Test for POST-viability abortions = a state may ban such abortions, as long as there are exceptions for abortions NECESSARY TO PROTECT THE LIFE/HEALTH of the mother
NOTE: there is no right to government-subsidized abortions, and there is no requirement that public hospitals perform abortions
Abortion regulations that impose an undue burden
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- a spousal consent or notification requirement
- requirement that doctor have “admitting privileges” at nearby hospital
- requirement that clinics have hospital-grade facilities
abortion regulations that don’t impose an undue burden
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- 24-hour waiting period
- requirement that abortions be performed by a licensed physician
- parental notice/consent for a minor’s abortion, if the law contains a judicial bypass
Default rule for substantive due process
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
If the government regulation does not interfere with a fundamental right (or abortion), the regulation will be subject to the RATIONAL BASIS test (thus will probably be upheld)
Exception = “Grossly excessive” punitive damage awards violate the Due Process Clause
Grossly excessive punitive damages
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Punitive damages that exceed compensatory damages by a ratio of more than 9:1 are probably “grossly excessive”
- Punitive damages are less likely to be found excessive if the defendant committed an intentional or reckless tort causing serious personal injuries
2 fundamental rights protected by the equal protection clause
(equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Right to vote
2. Right to travel
Principles for right to vote
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- There is a fundamental right to vote in national, state, and local elections
- restrictions on voting, other than those based on age (18), residency, and citizenship, are generally invalid
Invalid restrictions on right to vote
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- a requirement that voters have children in order to vote in a school board election
- poll taxes or educational requirements
- property ownership (except for “water district” elections)
Valid restrictions on right to vote
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- presentation of government-issued photo I.D.
2. proof of residency for a short period (e.g., 30 days)
one person-one vote rule
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
(e. g., the seats in both houses of a state legislature must be apportioned on a population basis)
- appointments of officials and at-large elections are valid as long as not used to suppress minority voting power
- racial gerrymandering must meet strict scrutiny if race was a “predominant factor” in drawing the district’s lines
- states may measure districts by counting “total population” instead of eligible voters
ballot fees and restrictions
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Ballot fees and restrictions are subject to strict scrutiny
- Filing fees—even if reasonable in amount—must be waived for indigent candidates
racial restrictions
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Racial restrictions on voting are invalid under the 15th Amendment
- The 15th Amendment requires proof of “purposeful intent” to discriminate on the basis of race
3 principles
(right to travel // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- There is a fundamental right to travel interstate and to be treated like a long-term resident once becoming a permanent resident of a state
- Laws that prohibit entering or leaving a state must meet strict scrutiny
- Benefits that distinguish between long-term and short-term residents are subject to strict scrutiny (and probably also violate the 14th Amendment’s Privileges and Immunities Clause)
Durational residency requirements
(right to travel // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Durational residency requirements are subject to strict scrutiny, but some have been upheld:
- one year for welfare benefits = invalid
- one year for subsidized medical care = invalid
- one year to vote = invalid
- one year for a divorce = valid
- one year for reduced tuition at public universities = valid
Federal restrictions on international travel
(right to travel // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Subject only to rational basis test
2 principles
(access to courts // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Laws denying indigents access to the courts where some fundamental liberty interest is at stake have been invalidated
- But courts have upheld fees where no fundamental liberty interest was at stake
4 examples of invalidated court fees
(access to courts // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- the fee for a trial transcript, which was necessary for a convicted criminal to appeal
- the filing fee required to initiate divorce proceedings
- the fee charged for blood tests in paternity proceedings
- the fee to prepare the appellate record in a termination of parental rights action
2 examples of upheld court fees
(access to courts // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- the fee for filing a bankruptcy petition
2. the fee to secure review of eligibility for welfare benefits
4 principles for classifications
(classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The Equal Protection Clause guarantees that similarly situated persons will be treated alike.
- If a law purposely discriminates against a group, the law will be subject to the equal protection clause of the 14th Amendment or the due process clause of the 5th Amendment for the federal government (i.e., reverse incorporation).
- If the law does not “purposely” discriminate, it will be subject to the rational basis test.
- The level of scrutiny to apply will depend on what group is being singled out
3 classifications for equal protection
(classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- suspect classes
- quasi-suspect classes
- all other classifications
Basic principles
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Discrimination in favor of or against suspect classes is subject to strict scrutiny and will rarely be upheld.
- There are three suspect classes:
1. Race
2. National origin (ancestry)
3. Alienage (sometimes)
Alienage
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
laws that treat documented residents (legal residents who are not U.S. citizens) differently than U.S. citizens are sometimes subject to strict scrutiny
federal laws on alienage
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Rational Basis Test only
state laws on alienage
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
get strict scrutiny
EXCEPTIONS = state laws concerning self-government and the democratic process are subject to the Rational Basis Test
Examples of state laws on alienage subject to strict scrutiny
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
state laws requiring U.S. citizenship to practice law, become an engineer, receive welfare benefits, qualify for civil service jobs, or receive a notary public license
Examples of state laws on alienage subject to rational basis test
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Laws concerning voting, jury duty, elective office, police officers
- Laws concerning public school teachers, probation officers
basic principles
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Discrimination in favor of or against quasi-suspect classes is subject to intermediate scrutiny and will rarely be upheld
- there are two quasi-suspect classes:
1. gender
2. non-marital children
analysis for gender classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- the government must show an “exceedingly persuasive justification” for laws that intentionally discriminate based on traditional stereotypes
- But laws designed to remedy past discrimination against women (e.g., different methods used to calculate social security benefits or different periods for military promotions) are valid
analysis for non-marital children classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
A law that treats non-marital children (i.e., those born out of wedlock) differently than marital children is subject to intermediate scrutiny
example of valid law for non-marital children classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
a law that requires non-marital children to prove paternity before inheriting from their father is valid, because it treats some non-marital children (i.e., those that can prove paternity) the same as marital children
example of invalid law for non-marital children classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
a law that prohibits all non-marital children from inheriting from their fathers, but allows all marital children to so inherit
Basic principles
(all other classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Except for classifications based on suspect or quasi-suspect classes, all other classifications are subject to the Rational Basis Test, and thus will generally be upheld
- This includes classifications based on age, wealth, education, disabilities, etc.
- Such classifications, however, must be based on “LEGITIMATE” government interests
What is not a legitimate government interest?
(all other classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The Court has held that irrational prejudice, societal fear, or the desire to harm a politically unpopular group is not a “legitimate” government interest.
Examples = gay men, mentally retarded adults, children of illegal aliens, hippies
2 principles
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Federal, state, and local governments usually have eminent domain power.
- Governments may take private property for public use, but the private landowner is entitled to just compensation.
What can be the subject of a taking?
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Real property, personal property, and intangibles may be the subject of a “taking.”
What does the second amendment guarantee?
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The Second Amendment guarantees the right to purchase, carry, and use typical weapons (e.g., handguns) for the purpose of self-defense
What does the second amendment not guarantee?
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The Second Amendment does not guaranty the right to carry “dangerous or unusual weapons.”
Level of scrutiny for gun control laws
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Gun control laws are subject to at least intermediate scrutiny.
Does the second amendment apply to state and/or local governments?
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The Second Amendment’s right to keep and bear arms applies to state and local governments via the 14th Amendment.
What 3 things does the First Amendment prohibit Congress from doing?
(first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Making any law abridging the freedom of speech or the press
- Making any law abridging the freedom of religion (Free Exercise Clause)
- Establishing a religion (Establishment Clause)
To whom does the First Amendment apply?
(first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The restrictions apply to state and local governments via the 14th Amendment
content-based v. content-neutral
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Key inquiry = does the law regulate the “content” of the speech or is it “content-neutral”?
- If the law regulates the content of the speech, the law must satisfy STRICT scrutiny.
- By contrast, content-neutral regulations are subject only to INTERMEDIATE scrutiny (i.e., narrowly tailored to a significant government interest)
Example of content-neutral regulation
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
no amplified music after 10:00 p.m. or no loud speakers
2 types of laws that are “content-based”
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- those that discriminate on the basis of subject matter
(example = “all picketing is banned except for labor picketing”) - those that discriminate on the basis of viewpoint
(example = “all picketing is banned except for pro-labor picketing”)
5 categories of unprotected or less protected speech
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Clear and present danger
- Threats and fighting words
- Obscenity, pornography, and profanity
- Defamation
- Commercial speech
= may be regulated or banned based on content
(other than these categories, all other content-based regulations are subject to strict scrutiny)
speech that presents a clear and present danger
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
speech may be banned where it
- is directed (i.e., INTENDED) to produce or incite
- IMMINENT lawless action, and
- is LIKELY to produce or incite such action
(however, most statutes attempting to ban such unprotected speech are unconstitutionally overbroad and/or vague)
Definition of “true threats”
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
statements meant to communicate an intent to place an individual or group in fear of bodily harm
Examples of “true threats”
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
speech that willfully threatens the life of the president or cross burning with the intent to intimidate
Rule for threats
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
TRUE threats not protected by the First Amendment
Definition of fighting words
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
speech personally directed to a specific listener or group that is likely to incite a physical retaliation
Examples of fighting words
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
a direct personal insult or an invitation to exchange fisticuffs
Rule for fighting words
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- speech personally directed to a specific listener or group that is likely to incite a physical retaliation may be banned.
- but for the past 50 years, all fighting words laws have been found to be either unconstitutionally vague (e.g., laws prohibiting “offensive, annoying, or abusive” language) OR not view-point neutral (laws prohibiting various types of hate speech)
obscenity definition
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Obscenity is defined as a depiction of sexual conduct that,
taken as a whole,
by an average adult,
applying contemporary community (state or local) standards:
1. appeals to the prurient (i.e., shameful or morbid) interest in sex;
2. portrays sex in a patently offensive way that is specifically defined by state (or federal) law; AND
3. does not, taken as a whole, have serious literary, artistic, political, or scientific value, using a national reasonable person standard
obscenity protection
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- obscenity is not protected by the First Amendment
- BUT the government may not ban material suitable for adults solely to protect children (e.g., banning “indecent” speech on the Internet to protect minors is invalid because it amounts to a total ban for adults)
- private possession of obscenity is protected by the First Amendment (but private possession of child pornography is not)
pornography protection
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- child pornography (even private possession) is not protected
= material depicting sexual conduct involving actual minors may be completely banned, even if not “obscene” - adult pornography—as opposed to obscenity—is protected speech
adult entertainment establishments
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Adult book stores, adult theaters, and strip joints may be limited to a particular part of the city by zoning ordinances if
- the law is designed to promote a legitimate local interest (e.g., protect residential character of neighborhood, avoid crime or parking problems) and
- the law does not prohibit all such entertainment in the community (a zoning law may limit it to a very small part of the city)
profanity
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Profane and indecent language is generally protected by the First Amendment.
EXCEPTIONS = broadcast media (but not cable or the Internet) and public schools (K-12)
defamatory speech protection
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Defamatory speech is not protected by the First Amendment
- Laws punishing false statements that do not constitute defamation or commercial speech (e.g., wearing unauthorized military medals) are subject to strict scrutiny (because they are content-based) and will rarely be upheld
media liability for privacy torts/crimes
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The media may not be subject to criminal OR civil liability for publishing truthful information about a public matter (e.g., rape victim’s name) that was either
a. lawfully obtained (e.g., from court records) OR
b. illegally obtained by someone other than the media
who has a constitutional right to government information?
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
TRICK. NO ONE.
Neither the public nor the press has a constitutional right
a. to government information OR
b. to attend federal government meetings, etc.,
EXCEPT for criminal trials (all important parts of a criminal trial must be open to the public and the press)
2 principles for commercial speech
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- False, misleading, and deceptive commercial speech, as well as the advertisement of illegal activities, may be banned
- All other commercial speech is protected by the First Amendment and may be regulated only if the government satisfies a test similar to Intermediate Scrutiny
= AKA the government shows that the law directly advances a SUBSTANTIAL INTEREST and is no more extensive than NECESSARY
5 types of laws that have been invalidated under general commercial speech test
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- total or near total bans on the advertisement of legal products or services, such as abortions, contraceptives, prescription drug prices, alcohol prices, alcohol content
- laws banning news racks for “commercial” publications, but allowing news racks for newspapers
- laws banning tobacco ads within 1000 feet of schools
- laws banning “for sale” signs on real estate
- laws banning in-person solicitation by accountants
example of false, misleading, and deceptive commercial speech
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Under this rule, a state may ban attorney in-person solicitation of fee-paying clients and contact with accident victims within 30 days of an accident.
Analysis
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
If a question involves a person or group wishing to use government property for speech, one must determine what type of property is at issue, as that will determine the test to apply.
Public forums definition
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
These include major sidewalks, streets, and parks
Public forums analysis
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
For the government to regulate speech in such public forums, the regulation must be
- content-neutral,
- a reasonable time, place and manner restriction,
- narrowly tailored to serve a significant (or substantial) government interest, AND
- must leave open alternative channels of communication
(The government is NOT required to use the least restrictive means of accomplishing its goals)
Content-based restrictions in public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
In a public forum, content-based restrictions on speech must survive strict scrutiny
Designated (unlimited) public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
These are non-public forums that the government has opened by policy or practice to speech
Rules for designated (unlimited) public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Designated public forums are subject to the same rules as public forums
BUT the government may close the property entirely at any point
Example of designated (unlimited) public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
if a high school opens its classroom after hours to community groups, it must allow access to all groups, including religious groups (i.e., it must be content-neutral)
Non-public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- All other government property is non-public.
- The government may regulate speech in non-public forums if the regulation is
1. viewpoint neutral, AND
2. reasonably related to a legitimate government purpose
Examples of non-public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- military bases
- schools
- government workplaces
- courthouses (and grounds)
- prisons and jails (and grounds)
- post office sidewalks
- street signs, etc. (no right to post signs)
- airport terminals
- political debates on public television
- ad space on city buses
- government radio stations
- polling places on election day
Limited public forum definition
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
A limited public forum arises when the government opens a non-public forum but limits the expressive activity to certain groups or to certain subjects
Limited public forum examples
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
state university meeting facilities available for student groups or open school board meetings
Limited public forum definition
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Limited public forums are subject to the same test as non-public forums
3 special rules for government property
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Public schools (K-12)
- Government workplace
- Prisons
Public Schools (K-12)
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Public school students do not lose all free-speech rights at school
- However, school officials may ban student speech that they reasonably forecast will cause a substantial disruption to school activities
- School officials must have a specific, articulable reason for forecasting the disruption; they cannot rely on undifferentiated fear or apprehension of disturbance
What types of speech can school officials ban or control?
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- School officials may also ban speech that is vulgar or lewd or speech that promotes (explicitly or implicitly) the illegal use of drugs.
- School officials may also control school-sponsored speech (e.g., school newspaper) if the control reasonably relates to a legitimate pedagogical concern
Speech in government workplace made pursuant to an employee’s official duties
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
If the speech is made pursuant to an employee’s official duties, a government employer may punish the employee for such speech, even if it involves a matter of public concern
Speech in government workplace not made pursuant to an employee’s official duties
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
If the speech is not made pursuant to the employee’s official duties, the following tests apply:
- If the speech does not involve a matter of public concern, the government may punish the employee if the speech was disruptive to the work environment.
- If the speech involves a matter of public concern, the court will balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interest in efficient performance of public service.
Example of speech in government workplace involving matter of public concern
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
petition circulated intra-office regarding the employer’s transfer policies
Example of speech in government workplace not involving matter of public concern
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
letter to the media attacking superintendent’s proposals to raise revenue
Prisons
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Speech may be regulated in prisons if reasonably related to legitimate penological interests
- A restriction on incoming mail will be upheld if it is rational; a restriction on outgoing mail must be narrowly tailored.
Test
(free speech - conduct/symbolic speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The government may regulate symbolic speech if
- the regulation furthers an important government interest
- that is unrelated to the suppression of speech, and
- the burden on speech is no greater than necessary
Upheld regulation
(free speech - conduct/symbolic speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Under this test, the Supreme Court has upheld regulation of the following conduct:
- draft-card burning,
- public nudity,
- nude dancing,
- littering,
- overnight sleeping in public parks
Invalidated regulation
(free speech - conduct/symbolic speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
However, the Court has invalidated regulation of inherently expressive conduct, such as flag burning, cross burning (unless done with the intent to intimidate others), swastika painting, and the wearing of black armbands by students
prior restraints
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Prior restraints on speech are presumptively void
- 3 types of prior restraints
1. Judicial orders prohibiting speech
2. Licensing and permit schemes
3. Physical seizure or prohibition
Judicial orders prohibiting speech
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
For a court to enter an injunction or other order prohibiting speech, such as a gag order on the press, the court must satisfy Strict Scrutiny, which it will rarely be able to do
Collateral bar rule
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
According to the Collateral Bar Rule, a person must comply with a court injunction even if it is unconstitutional. Failure to do so will result in contempt
Permissible prior restraints
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
A prior restraint is permissible when
1. the parties have contractually agreed to the restraint
(EXAMPLE = court enforced agent’s agreement to give CIA prepublication review of any proposed publications) or
2. in case of national security
(EXAMPLE = First Amendment would not bar injunction against publishing the date of sailing for troop ships in time of war)
Licensing and permit schemes
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
If there is an ordinance or other law requiring a person to obtain a permit or license to speak, march, etc., such system must provide
- definite standards for the granting of the license or permit;
- no discretion in the granting official (including discretion to charge different amounts);
- prompt issuance; and
- prompt judicial review
Procedurally improper licensing scheme
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
If a licensing scheme is procedurally improper, the speaker may ignore the scheme and raise a First Amendment challenge in later proceedings
Facially proper licensing scheme
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
If the scheme is facially proper, the speaker must follow these procedures or he or she will be barred from raising First Amendment issues in a later prosecution
Physical Seizure or Prohibition
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The government physically seizes the means of speech (e.g., printing press, film, computer) or prohibits certain types of speech from using the postal system
9 random topics with free speech rules
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Taxing and regulating the press
- Freedom of association
- Political contributions
- Loyalty oaths
- Group membership
- Government funding of speech
- Overbroad and vague
- Right not to speak
- Intellectual property
Taxing and Regulating the Press
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The press (and other media) are subject to general business regulations and taxes, but may not be singled out for special regulations or taxes
Reporter’s privilege
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
There is no “reporter’s privilege” under federal law; thus, reporters may be forced to divulge their sources at grand jury proceedings and trials
Freedom of Association
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- There is an implied freedom of association in the First Amendment, which prohibits regulation (including anti-discrimination laws) of intimate, private groups and clubs, but not large clubs with unselective membership or that are used for business contacts
- Also, expressive groups (Boy Scouts) can have exclusive membership, even if the group was not formed for the sole purpose of propagating a particular message
Political Contributions
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The government may limit the amount a person may give to a particular candidate, but may not limit the amount a person or group may spend on an election or referendum
- The government also may not limit the amount a person spends on his or her own campaign
- But the government may ban personal solicitation of funds by judicial candidates
Loyalty Oaths
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The government may require a person to swear to support the constitutions (state and federal) or swear to oppose unlawful attempts to overthrow the government to obtain government employment or become a member of the bar
- Persons may not be required to “support the flag” or swear not to “advocate” an overthrow of the government as an abstract idea
Group Membership
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- A person may not be punished or precluded from public employment, etc. because of membership in an organization (e.g., the communist party), unless that person was a knowing and active member with the specific intent to further the organization’s unlawful aims
- Laws that require groups to disclose membership are subject to strict scrutiny.
Government Funding of Speech
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Government funding may be content-based, as long as it is view-point neutral (e.g., the government may choose artists, etc. to which to give grants)
- But if a college gives financial support to student groups, it may not exclude religious groups
- The First Amendment is violated when money is taken from nonconsenting government employees for a public-sector union; employees must choose to support the union before anything is taken from them
Overbroad and Vague
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Laws that are vague or overbroad are not enforceable, and may be facially challenged (even by those whose speech would not be protected)
- A vague or overbroad state statute may be saved if the courts of that state have limited its application to unprotected speech
Overbroad definition
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
A law is overbroad if it prohibits substantially more speech than required (e.g., “all live entertainment”)
Vague definition
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
A law is vague if a reasonable person would not know what speech is prohibited (e.g., “all First Amendment activities”).
Right Not to Speak
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The First Amendment protects a person’s right not to speak
3 examples of the right not to speak
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- a person may tape over the statement “Live Free or Die” on license plates
- a person may not be forced to salute or pledge to the flag
- a clinic may not be forced to give patients a government-drafted notice about the availability of abortion and contraception); moreover, a person has the right to speak anonymously
Intellectual Property
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The First Amendment does not protect the publication of
a. a private performance (without the consent of the performer) or
b. the republication of copyrighted material (without the consent of the author) - In addition, the government’s denial of a trademark application on grounds that the trademark is “derogatory” is an unconstitutional suppression of free speech
free exercise clause
(free exercise // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The First Amendment prohibits Congress from passing any law abridging the freedom of religion
- The 14th Amendment incorporates this clause, thus making it applicable to state and local governments
- “Religion” includes any sincerely held religious-like beliefs.
General Rule
(free exercise // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- The free exercise clause may not be used to challenge a neutrally applied law of general applicability (e.g., criminal laws or tax laws).
- If, however, the purpose of a law is to single out religion for adverse treatment or to hinder or discriminate against a particular religion, that law will be subject to strict scrutiny (e.g., the Court invalidated a law banning animal sacrifice that was motivated to exclude a religious sect from the city).
5 special rules
(free exercise // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- A person who quits a job or fails to take a job because of sincerely held religious beliefs may not be denied unemployment benefits (e.g., refusing to work on Sabbath, refusing to produce armaments); a person can, however, be denied such benefits if he or she is fired for a violation of the criminal laws (e.g., peyote use).
- Religious oaths may not be required for government employment.
- Amish children are exempt from mandatory secondary education.
- Religious organizations are exempt from employment discrimination suits brought by ministers and other ministerial employees.
- A state may not ban religious groups from receiving government benefits (e.g., a state program to provide free playground materials must provide such materials to eligible religious and nonreligious organizations).
What does the establishment clause say?
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Congress shall make no law respecting the establishment of religion
To whom does the establishment clause apply?
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
The 14th Amendment incorporates this clause, thus making it applicable to state and local governments
Test for establishment clause issues
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
AKA the lemon test
to be valid:
1. The law’s primary purpose must be secular
2. The effect of the law must not be to advance or inhibit religion (in other words, the government must not symbolically endorse religion)
3. There must not be excessive government entanglement with religion
rules on activities for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Government sponsored religious activities in public schools (elementary, middle, and high school) are unconstitutional
- all school prayer (including voluntary, silent, and student-run) during school, at graduation, or at sporting events is unconstitutional
- bible reading and the teaching of creationism (or the prohibition of teaching evolution) is unconstitutional, but the academic study of religion is constitutional
- posting the Ten Commandments in public schools is unconstitutional
- but schools may allow students to leave early to attend religious instruction off-campus
rule on financial aid for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
as a general rule, government programs providing assistance to all elementary and secondary school students—including students at religious schools—is constitutional, but there are a few exceptions
5 types of constitutional financial aid for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- free secular textbooks
- reimbursement for transportation to and from school; public health services
- reimbursement for diagnostic and state-prepared tests
- sign-language interpreters
- remedial education, guidance counseling
3 types unconstitutional financial aid for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- transportation for field trips
- payment of teachers’ salaries
- reimbursement for teacher-prepared tests
rule on tuition for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Direct subsidies to religious schools are impermissible, but vouchers to parents, which may be used for religious and non-religious schools, are constitutional
- In addition, tax deductions and credits for tuition, school supplies, etc. are valid if they are available to the parents of all students
4 other cases
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
- Holiday scenes are permissible if they include both religious and non-religious symbols (e.g., a snowman)
- The 10 Commandments may not be displayed on government property, unless they are displayed with other historical documents (e.g., Magna Carta, Declaration of Independence) in an appropriate context
- Government action that prefers one religious sect over another violates the Establishment Clause (e.g., a law creating a public school for Jewish students is unconstitutional)
- State legislatures and town councils may have a chaplain for historical reasons
flowchart = 3 steps
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
#1 = Has there been a “taking” of property? #2 = If there has been a taking, was it for a “public use”? #3 = If there has been a “taking” for a “public use,” the government must pay “just compensation.”
flowchart #1. Has there been a “taking” of property?
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
A. Has there been a permanent, physical invasion of property (per se taking)?
- Gov invades, condemns, destroys (floods) or confiscates private property; or
- Gov orders private landowner to permit public or third-party access
B. If not, has a gov regulation diminished the use and/or value of private property?
- All economically viable use = per se taking (unless the regulation was designed to suppress a common law nuisance)
- Otherwise, Ad Hoc Balancing Test
a. character of the gov action
b. protection of reasonable, investment-backed expectations
c. economic impact of the regulation on the particular owner
- Otherwise, Ad Hoc Balancing Test
C. If not, has the government conditioned a building or construction permit or zoning variance or petition on the owner’s agreement to grant an easement to the government or the public or to set aside land for public or third party use or to make a monetary exaction?
– Test: Is there an
a. ESSENTIAL NEXUS btwn the condition and a LEGIT GOV INTEREST and
b. is the condition “ROUGHLY PROPORTIONAL” to the projected impact of the owner’s development?
(If not, it is a taking.)
flowchart #2. If there has been a taking, was it for a “public use”?
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
#2. If there has been a taking, was it for a “public use”? - Answer: Yes
flowchart #3. If there has been a “taking” for a “public use,” the government must pay “just compensation.”
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
3. If there has been a “taking” for a “public use,” the government must pay “just compensation.”
- The government must pay FMV = the loss to the owner, not the gain to the taker
- The landowner is not entitled to damages for loss of business or “good will” or for moving expenses
flowchart = 3 questions
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
QUESTION ONE = At what point in time is the speech being regulated?
QUESTION TWO = What is being regulated?
QUESTION THREE = What property does the speaker intend to use for speech?
flowchart Q1. At what point in time is the speech being regulated?
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Q1 = At what point in time is the speech being regulated?
A. The government is trying to prevent the speech from occurring (e.g., a license to speak or gag order on the press). If so, see the Prior Restraint materials.
B. The regulation punishes speech after it occurs. If so, move to Q2.
flowchart Q2. What is being regulated?
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Q2 = What is being regulated?
A. Pure Speech (e.g., oral or written language). If so, move to Q3.
B. Conduct/Symbolic Speech (e.g., burning draft cards or burning flags). If so, go to Regulating Conduct materials.
flowchart Q3. What property does the speaker intend to use for speech?
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES
Q3 = What property does the speaker intend to use for speech?
A. His or her own private property (or other private property with permission). If so, go to Content-based v. Content-neutral materials.
B. The government’s property. If so, go to Government Property materials.
C. Private property belonging to someone other than the speaker who objects to such use. There is no right to use another’s private property (including his or her mailbox) for speech.
THE BASICS
supreme law of the land
[judicial review // role of fed cts in constitutional cases]
the constitution
THE BASICS
supreme court’s duty/province
[judicial review // role of fed cts in constitutional cases]
to interpret the constitution
THE BASICS
supreme court’s interpretation
[judicial review // role of fed cts in constitutional cases]
= final and binding
a. of the U.S. Constitution
b. of federal law
c. not of state constitutions
SC JURISDICTION
2 types of jurisdiction
[judicial review // role of fed cts in constitutional cases]
- Original jurisdiction
2. Appellate jurisdiction
SC JURISDICTION
original jurisdiction - definition
[judicial review // role of fed cts in constitutional cases]
= a case that is heard by the SC before it’s been decided by any other ct
SC JURISDICTION
original jurisdiction - scope
[judicial review // role of fed cts in constitutional cases]
constitution says SC has original jurisdiction in all cases
- Affecting ambassadors, other public ministers and consuls
- Those in which a state shall be a party
SC JURISDICTION
original jurisdiction - congressional limits
[judicial review // role of fed cts in constitutional cases]
Congress can’t expand or reduce SC’s original jurisdiction
BUT can grant concurrent jurisdiction to lower federal courts to hear such cases
EXCEPTION = in suits btwn 2+ states, SC’s original jurisdiction is exclusive
SC JURISDICTION
exclusive original jurisdiction
[judicial review // role of fed cts in constitutional cases]
in suits btwn 2+ states
SC JURISDICTION
appellate jurisdiction - definition
[judicial review // role of fed cts in constitutional cases]
= jurisdiction to review a lower court’s decision AKA another (state or fed) tribunal has already ruled on this controversy
SC JURISDICTION
appellate jurisdiction - scope
[judicial review // role of fed cts in constitutional cases]
almost entirely discretionary (but mandatory for injunctive relief by federal 4 judge-panel or something)
SC JURISDICTION
appellate jurisdiction - rule of 4
[judicial review // role of fed cts in constitutional cases]
= writ of cert may be granted upon approval of 4 justices
THE BASICS
underlying principle of justiciability
[justiciability // role of fed cts in constitutional cases]
= fed cts should avoid deciding constitutional issues needlessly
THE BASICS
definition of justiciability
[justiciability // role of fed cts in constitutional cases]
= even if a case involves an issue within the jurisdiction of fed cts, a fed ct won’t hear the dispute unless it’s in the appropriate posture
THE BASICS
when is justiciability determined?
[justiciability // role of fed cts in constitutional cases]
justiciability determinations are made at each level in fed cts
THE BASICS
6 key doctrines
[justiciability // role of fed cts in constitutional cases]
- Advisory opinions
- Standing
- Ripeness
- Mootness
- Political questions
- Adequate and independent state grounds
ADVISORY OPINIONS
constitutional prong
[justiciability // role of fed cts in constitutional cases]
Article III limits the jurisdiction of federal courts to “cases” or “controversies”
ADVISORY OPINIONS
2 types
[justiciability // role of fed cts in constitutional cases]
- Classic advisory opinions
2. Non-final opinions
ADVISORY OPINIONS
definition of classic advisory opinions
[justiciability // role of fed cts in constitutional cases]
= situations in which someone (often member of exec or legis branch) is seeking opinion about the validity/constitutionality of a law or gov action before it’s enacted or enforced
ADVISORY OPINIONS
definition of non-final opinions
[justiciability // role of fed cts in constitutional cases]
= opinions by fed cts that may be
reversed or modified
by the exec or legis branch
(or really anyone other than a higher ct)
STANDING
general rule - 3 requirements
[justiciability // role of fed cts in constitutional cases]
- Injury in fact
- Causation
- Redressability
STANDING
injury in fact - definition
[justiciability // role of fed cts in constitutional cases]
= P has suffered a
- CONCRETE, PARTICULARIZED injury
- that has ACTUALLY OCCURRED or is IMMINENT
STANDING
injury in fact - proof required
[justiciability // role of fed cts in constitutional cases]
ideally P can show either
• physical injury or
• property damage or
• economic loss
STANDING
definition of causation
[justiciability // role of fed cts in constitutional cases]
= injury must be FAIRLY TRACEABLE to D
STANDING
definition of redressability
[justiciability // role of fed cts in constitutional cases]
= a favorable decision on the merits to P will fix the injury
STANDING
4 special cases for standing
[justiciability // role of fed cts in constitutional cases]
- Citizen standing
- Taxpayer standing
- 3P standing
- Legislators’ standing
STANDING SPECIAL RULES/EXCEPTIONS
rule for citizen standing
[justiciability // role of fed cts in constitutional cases]
= Citizenship alone is insufficient to confer standing
STANDING SPECIAL RULES/EXCEPTIONS
3 rules for taxpayer standing
[justiciability // role of fed cts in constitutional cases]
- Federal taxpayers don’t have standing to challenge federal spending measure UNLESS
- congress confers such standing OR
- the measure was enacted under congress’s taxing and spending power AND exceeds a specific limitation on that power (so far only establishment clause) - State taxpayers don’t have standing in federal court to challenge state expenditures
- Municipal taxpayers probably have standing in fed ct to challenge municipal expenditures
STANDING SPECIAL RULES/EXCEPTIONS
3P standing - rule
[justiciability // role of fed cts in constitutional cases]
generally = P may assert only injuries that she suffered and not injuries suffered by others
4 exceptions
- Associational standing
- Jus tertii standing
- Special relationship
- First amendment challenge
STANDING SPECIAL RULES/EXCEPTIONS
3P standing - associational standing rule
[justiciability // role of fed cts in constitutional cases]
= associations may assert claims on behalf of their members AS LONG AS
- at least 1 MEMBER has Article III STANDING AND
- claim is RELATED to association’s MISSION
STANDING SPECIAL RULES/EXCEPTIONS
3P standing - jus tertii standing rule
[justiciability // role of fed cts in constitutional cases]
= P has standing to assert 3P’s if there is
- an IMPEDIMENT to the real P brining suit on her own behalf AND
- a NEXUS btwn the real P and the 3P
STANDING SPECIAL RULES/EXCEPTIONS
3P standing - 2 key examples of jus tertii standing
[justiciability // role of fed cts in constitutional cases]
- doctors asserting rights of patients
- litigants asserting rights or jurors
STANDING SPECIAL RULES/EXCEPTIONS
3P standing - special relationship rule + key example
[justiciability // role of fed cts in constitutional cases]
rule = there is a SPECIAL RELATIONSHIP btwn P and 3P
key example = parent-child
STANDING SPECIAL RULES/EXCEPTIONS
3P standing - first amendment challenge rule
[justiciability // role of fed cts in constitutional cases]
P has standing to assert a First Amendment “facial challenge” to an overbroad law
STANDING SPECIAL RULES/EXCEPTIONS
legislators’ standing rule
[justiciability // role of fed cts in constitutional cases]
= legislators don’t have standing to challenge legislation with which they disagree solely based on an INSTITUTIONAL injury to all members of congress equally
(obviously unless they have sufficient personal stake and concrete injury)
RIPENESS
definition
[justiciability // role of fed cts in constitutional cases]
= case is brought TOO EARLY
P doesn’t have standing yet
RIPENESS
when does ripeness often arise?
[justiciability // role of fed cts in constitutional cases]
In cases where P is challenging a criminal statute or admin regulation before it’s been enforced or imminently threatened to be enforced against her
MOOTNESS
definition
[justiciability // role of fed cts in constitutional cases]
= case is brought TOO EARLY (P had standing but lost it)
MOOTNESS
voluntary cessation rule
[justiciability // role of fed cts in constitutional cases]
If D voluntarily ceases whatever action’s at issue, case will ONLY be moot if there’s NO REASONABLE EXPECTATION that alleged violation will recur
MOOTNESS
3 exceptions to mootness
[justiciability // role of fed cts in constitutional cases]
- Capable of repetition in this P yet evading review
- Collateral consequences
- Class actions
MOOTNESS EXCEPTIONS
capable of repetition in this P yet evading review - rule
[justiciability // role of fed cts in constitutional cases]
= issues with such inherently short durations that they would never receive full judicial review before becoming moot will not make a case moot
MOOTNESS EXCEPTIONS
capable of repetition in this P yet evading review - 2 key examples not moot under this exception
[justiciability // role of fed cts in constitutional cases]
- Issues involving pregnancy (like abortion)
- Ballot restriction measures in elections
MOOTNESS EXCEPTIONS
capable of repetition in this P yet evading review - key example that doesn’t meet this exception
[justiciability // role of fed cts in constitutional cases]
Discrimination against a law school in which P was admitted to (and was schedule to graduate from) the law school while the case was pending
MOOTNESS EXCEPTIONS
collateral consequences
[justiciability // role of fed cts in constitutional cases]
collateral consequences (like damages) that have yet to be determined will not make a case moot
MOOTNESS EXCEPTIONS class actions
[justiciability // role of fed cts in constitutional cases]
after a class has been certified, the named plaintiff’s claim being moot will not make a case moot AS LONG AS the other members’ claims are still viable
POLITICAL QUESTIONS
2 types of political questions
[justiciability // role of fed cts in constitutional cases]
- Those textually committed to another branch by the constitution
- Those for which there are no judicially manageable standards
POLITICAL QUESTIONS
3 examples of political questions textually committed to another branch by the constitution
[justiciability // role of fed cts in constitutional cases]
- Impeachment process
- Congress’ power to judge the age/residency/citizenship qualifications of its members
- Congress’ power to expel a member
POLITICAL QUESTIONS
6 examples of political questions for which there are no judicially manageable standards
[justiciability // role of fed cts in constitutional cases]
- Constitutional amendment process
- Partisan gerrymander
- Disputes within political parties
- Guaranty clause cases (EX = what is a republican form of gov?)
- Administration of foreign affairs (EX = prez’s pwr to unilaterally terminate treaty)
- President’s authority to deploy military forces w/o congressional declaration of war
ADEQUATE & INDEPENDENT STATE GROUNDS
rule
[justiciability // role of fed cts in constitutional cases]
SC won’t exercise appellate jurisdiction over case arising out of highest state court if the state ct’s EXPRESSLY stated its decision rests on an ADEQUATE and INDEPENDENT state ground
ADEQUATE & INDEPENDENT STATE GROUNDS
key inquiry/analysis
[justiciability // role of fed cts in constitutional cases]
To determine if adequate and independent state grounds exist, ask:
Can the US SC change the result of the case by reversing on the federal issue?
- YES = justiciable, SC can hear the appeal
- NO = nonjusticiable, SC can’t hear the appeal
