Constitutional Law Flashcards
1
Q
MED
STATE SOVEREIGN IMMUNITY (11th AMENDMENT)
A
The 11th Amendment is a jurisdictional bar that prohibits:
- The citizens of one state or a foreign country from suing another state in federal court for money damages or equitable relief; AND
- Suits in federal court against state officials for violating state law.
2
Q
MED
11TH AMENDMENT EXCEPTIONS
A
The following are exceptions to the application of the 11th Amendment:
- Consent. A state may consent to a suit by waiving its protection.
- Injunctive Relief. When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary.
- Individual Damages. An action for damages against a state official is not prohibited so long as the official himself will have to pay.
- Congressional Authorization. Congress may abrogate state immunity from liability it is clearly and expressly acting to enforce rights created by the 14th Amendment.
3
Q
LOW
STANDING
A
A federal court cannot decide a case unless the plaintiff has standing (i.e., a concrete stake in the outcome of the action). To have standing, a plaintiff bears the burden of establishing three elements:
- Injury in Fact. The injury must be concrete and particularized (when a harm is concrete, though widely shared, there is standing). However, it does not have to be physical or economic. While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, it must be actual and imminent.
- Causation. The injury must be fairly traceable to the challenged action (i.e., the the defendant’s conduct caused the injury).
- Redressability. It must be likely that a favorable court decision will redress an injury suffered by the plaintiff.
4
Q
lowest
TAXPAYER STANDING
A
Generally, a taxpayer does NOT have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way. However, a taxpayer does have standing to litigate whether, or how much, she owes on her tax bill. In addition, a taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause.
5
Q
lowest
THIRD PARTY STANDING
A
Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a third party if:
- The third party would experience difficulty or is unable to assert their own rights;
- There is a special relationship between the plaintiff and the third party; OR
- The plaintiff’s injury adversely affects the plaintiff’s relationship with the third party.
6
Q
lowest
ORGANIZATIONAL STANDING
A
An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization itself has not suffered an injury) if:
- Its members would have standing to sue in their own right; AND
- The interests at stake are germane to the organization’s purpose.
7
Q
lowest
RIPENESS
A
A federal court will NOT consider a claim before it has fully developed. For a case to be ripe for litigation, the plaintiff must have experienced a real injury or imminent threat thereof.
8
Q
lowest
MOOTNESS
A
A case has become moot if further legal proceedings would have no effect (i.e., there is no longer a controversy). A live controversy must exist at each stage of review (not merely when the complaint is filed).
9
Q
lowest
CAPABLE OF REPETITION, YET EVADING REVIEW
A
A case will NOT be dismissed as moot if the controversy is a type that may often recur, but that will not last long enough to work its way through the judicial system (e.g., abortion challenges once the woman is no longer pregnant).
10
Q
lowest
VOLUNTARY CESSATION
A
A case will NOT be dismissed as moot if the defendant voluntarily ceases the wrongful action once litigation has commenced. The court must be assured that there is no reasonable expectation that the wrong will be repeated.
11
Q
lowest
MOOTNESS IN CLASS ACTIONS
A
An entire class action will NOT be dismissed as moot solely because the named party’s claim in the class is resolved and becomes moot.
12
Q
lowest
ADVISORY OPINIONS
A
Federal courts may NOT render advisory opinions on the basis of an abstract or hypothetical dispute. An actual case or controversy must exist. However, courts may issue declaratory judgments (i.e., judgments that determine the legal effect of proposed conduct without awarding damages or injunctive relief) so long as the action in question poses a real and imminent danger to a party’s interests.
13
Q
lowest
POLITICAL QUESTIONS
A
A federal court will NOT rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government. A political question not subject to judicial review arises when:
- The Constitution has assigned decision making on the matter to a different branch of government; OR
- The matter is inherently not one that the judiciary can decide.
14
Q
lowest
NECESSARY AND PROPER POWER
A
Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government. Thus, Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
15
Q
LOW
TAXING POWER
A
Congress has the power to tax, and most taxes will be upheld if:
- They bear some reasonable relationship to revenue production; OR
- Congress has the power to regulate the activity taxed.
16
Q
LOW
SPENDING POWER
A
Congress may spend to “provide for the common defense and general welfare.” Spending may be for any public purpose.
17
Q
MED
COMMERCE POWER
A
Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either regulate the:
- Channels of interstate commerce;
- Instrumentalities of interstate commerce and persons and things in interstate commerce; OR
- Activities that have a substantial effect on interstate commerce.
When Congress attempts to regulate intrastate activity under the third prong, the Court will uphold the regulation if:
- The regulation is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption); AND
- The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.
However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.
18
Q
LOW
13th, 14th, AND, 15th AMENDMENT ENFORCEMENT POWER
A
Each of the 13th, 14th, and 15th Amendments [ban on slavery, equal protection and due process, and voting rights] contain a provision that authorizes Congress to pass “appropriate legislation” to enforce the civil rights guaranteed by those Amendments.
19
Q
lowest
DELEGATION OF LEGISLATIVE POWER
A
Legislative power may generally be delegated to the executive or judicial branch provided that:
- Intelligible standards are set to the guide the delegation; AND
- The power is NOT uniquely confined to Congress (e.g., power to declare war).
20
Q
lowest
THE PRESIDENT’S DOMESTIC POWERS
A
The President has the power to:
- Reprieve or pardon federal offenses, except in cases of impeachment;
- Appoint all officers of the United States (e.g., ambassadors, Supreme Court Justices, etc.) with the advice and consent of the Senate;
- Remove any executive appointee without cause and without Senate approval, except in cases of federal judges (federal judges may only be removed by impeachment); AND
- Veto any bill presented to her by Congress.
21
Q
lowest
VETO PROCEDURE
A
Upon presentment of a bill, the President has 10 days to act. If the president signs the bill, it becomes law. If the President does nothing, the bill becomes law without the President’s signature so long as Congress is still in session at the end of the 10-day period. If the President vetoes the bill by sending it back with objections, Congress may override the veto and enact the bill into law by a two-thirds vote in each house.
22
Q
lowest
LINE ITEM VETO
A
The President may NOT exercise a line item veto (refusing part of a bill and approving the rest).
23
Q
lowest
SCOPE OF PRESIDENTIAL POWER
A
In order to determine whether the President’s actions are within the scope of his constitutional power, the court must consider the degree of congressional authorization the President is acting with:
- When the president is acting with the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid.
- When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government.
- When Congress has spoken to the contrary, presidential authority is at its lowest, and the action is likely invalid.
24
Q
lowest
THE PRESIDENT’S FOREIGN POWERS
A
- Commander in Chief. Although the President is commander in chief of the military, only Congress may declare war. However, the President may take military action without a declaration of war in the case of actual hostilities against the United States.
- Treaties. The President has the exclusive power to negotiate treaties, although a treaty may only be ratified with the concurrence of two- thirds of the Senate.
- Executive Agreements. The President has the power to enter into executive agreements (e.g., trade agreements) with foreign nations without approval the Senate.
25
# lowest
EXECUTIVE PRIVILEGE
The President has a **privilege** to keep certain communications secret. National security secrets are given the greatest deference by the courts.
In **criminal proceedings**, presidential communications will be available to the prosecution where a need for such information is demonstrated.
26
# lowest
EXECUTIVE IMMUNITY
The President has **absolute immunity** from **civil damages** based on any action he took within his **official responsibilities** as President; however, there is **no immunity** for acts that allegedly occurred **before** taking office.
27
# lowest
IMPEACHMENT
The President, Vice President, and all civil officers of the United States are subject to impeachment. Grounds include treason, bribery, high crimes, and misdemeanors. A **majority** vote in the House is necessary to **invoke the charges** of impeachment, and **two-thirds** vote in the Senate is necessary to **convict and remove** from office.
28
# lowest
EXCLUSIVE FEDERAL POWERS
**Power of States Expressly Limited.** Some powers are **exclusively federal** because the Constitution limits or prohibits the use of the power by state (e.g., treaty power, coinage of money).
**Inherent Federal Powers.** Other powers are **exclusively federal** because the nature of the power itself is such that it can be exercised only by the federal government (e.g., declaration of war).
29
# MED
EXCLUSIVE STATE POWERS
The **10th Amendment** provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.
30
# MED
FEDERAL REGULATION OF STATES
The federal government has **virtually unlimited power** to regulate the states. Generally, Congress may regulate the states so long as it is exercising an enumerated power. While Congress cannot command state legislatures to enact specific legislation, it may **encourage** state action through the use of its **taxing and spending powers**. (e.g., Congress can condition federal highway funds on the state’s requiring a minimum drinking age of 21).
31
# MED
DORMANT COMMERCE CLAUSE
If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action **does not**:
1. **Discriminate** against out-of-state commerce;
2. **Unduly burden** interstate commerce; OR
3. Regulate **wholly out-of-state** activity.
Legislation that violates any of the above requirements is generally deemed unconstitutional **unless**:
1. The state is acting as a **market participant** rather than a market regulator;
2. The legislation favors state or local government entities that are performing a **traditional government function**; OR
3. Congress **explicitly permits** the legislation.
32
# lowest
SUPREMACY CLAUSE
The Supremacy Clause provides that federal law is the "**supreme law of the land**." Any state law that **directly or indirectly conflicts** with a federal law is void under the Supremacy Clause.
33
# lowest
EXPRESS PREEMPTION
Federal law **expressly preempts** state law when:
1. The Constitution makes the federal power exclusive; OR
2. Congress has enacted legislation that explicitly prohibits state regulation in the same area.
34
# lowest
IMPLIED PREEMPTION
Federal law **implicitly preempts** state law when:
1. Congress intended for federal law to **occupy the entire field** (intent to occupy a field can be inferred from a framework of regulation so pervasive that Congress left no room for states to supplement it or when there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject);
2. The state law **directly conflicts** with the federal law (e.g., requiring conduct that is forbidden by the federal law or making it impossible to comply with both); **OR**
3. The state law **indirectly conflicts** with the federal law by creating an obstacle to or frustrating the accomplishment of the federal law's purpose.
35
# HIGH
STATE ACTION REQUIREMENT
Generally, the Constitution protects against wrongful conduct by the **government**, not private parties (there is an exception for the prohibition of slavery, which applies to the government and private parties). Thus, **state action** is required to trigger an individual's constitutional protections.
State action may exist in cases of private parties when:
1. A private person carries on activities that are **traditionally performed exclusively by the state**; OR
2. There are **sufficient mutual contacts** between the conduct of a private party and the government (this is a question of the degree of state involvement).
36
# lowest
PROCEDURAL DUE PROCESS
The Due Process Clause of the 14th and 5th Amendments guarantees that no person shall be denied **life, liberty, or property without due process of law.** Thus, a **fair process** (e.g., notice and hearing) is required for a government agency to take a person's life, liberty, or property.
Only **intentional** (not negligent) deprivation of these rights violates the Due Process Clause. The type and extent of procedural due process that is required is determined by a three-part balancing test that weighs:
1. The **importance of the individual's interest** that is being affected; **AND**
2. The value of specific **procedural safeguards** to that interest; **AGAINST**
3. The **government interest** in fiscal and administrative efficiency.
37
# lowest
SUBSTANTIVE DUE PROCESS
A governmental regulation that infringes upon a fundamental right is subject to the strict scrutiny standard of review, while a governmental regulation that does not infringe upon a fundamental right is subject to the rational basis standard of review. Fundamental rights, triggering strict scrutiny, include:
1. The right to **interstate travel**;
2. The right to **vote**; AND
3. The right to **privacy** (includes:
1. right to *marry*;
2. right of married persons to use *contraceptives*;
3. right of adults to engage in non-commercial, *consensual sex*;
4. right of parents to make *decisions regarding* the care, custody, and control of their *children*;
5. the *right of related persons to live together in a single household*)
38
# lowest
STANDARD OF REVIEW: STRICT SCRUTINY
The **government _must_ prove** that the regulation is the **least restrictive** means to achieve a **compelling** government interest (very difficult to prove).
39
# lowest
STANDARD OF REVIEW:
INTERMEDIATE SCRUTINY
The **government _must_ prove** that the regulation is **substantially related** to an **important** government interest.
40
# lowest
STANDARD OF REVIEW: RATIONAL BASIS
The **_challenger_ must prove** that the regulation is **_not_ rationally related** to any **legitimate** government interest (very difficult to prove).
41
# MED
EQUAL PROTECTION CLAUSE
When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made:
1. If a **suspect classification** is involved, the *strict scrutiny* standard applies. Classifications are suspect if they are based on **race, ethnicity, national origin, or alienage** (alienage is only suspect if the classification is made by state law).
2. If a **quasi-suspect classification** is involved, the *intermediate scrutiny* standard applies. Classifications are quasi-suspect if they are based on **gender or legitimacy** (non-marital children).
3. For **all other classifications** (e.g., age, disability, and wealth classifications), the *rational basis* standard applies.
42
# MED
GOVERNMENTAL INTENT
IN EQUAL PROTECTION
For **strict** or **intermediate** scrutiny to be applied in an equal protection analysis, there **must** be **intent** on the part of the **government** to **discriminate**. A **discriminatory effect** or **disparate impact** toward a group of people alone is **not** enough to show governmental intent.
Governmental intent may be shown by:
1. A law that is **discriminatory on its face**;
2. A **discriminatory application** of a facially neutral law; OR
3. A **discriminatory motive** behind a facially neutral law.
43
# LOW
AFFIRMATIVE ACTION
States may implement regulations to **remedy past discrimination** if the class has actually suffered **persistent** and **readily identifiable** past discrimination. A race-based plan cannot be used to remedy **general** past "societal discrimination." The level of scrutiny applied to the regulation depends on the classification.
44
# LOW
TAKINGS CLAUSE
The power of the government to take private property for public purposes is known as "**eminent domain**." The Takings Clause of the 5th Amendment acts as a check on this power. It provides that:
1. **Private property** may be taken;
2. For **public use**;
3. With **just compensation** (fair market value).
45
# LOW
REGULATORY TAKINGS
Generally, a governmental regulation that adversely affects a person's property interest is **not** a taking; however, it is possible for a regulation to **rise to level of a taking** (requiring just compensation). In determining whether a regulation constitutes a taking, the following factors are considered:
1. The **economic impact** of the regulation on the property owner;
2. The **extent to which the regulation interferes** with the owner's reasonable investment-backed expectations regarding the **use of the property**; AND
3. The **character of the regulation** (including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner's essential attributes of property ownership).
46
# LOW
PER SE TAKINGS
A governmental regulation clearly results in a taking when the regulation results in a:
1. Permanent **physical occupation** of the property; OR
2. Permanent **total loss** of the property's economic value.
47
# LOW
EXACTION AS A TAKING
A local government may exact promises from a developer (e.g., setting aside a portion of the land being developed for a public use in exchange for issuing the necessary construction permits) without violating the Takings Clause if there is:
1. An **essential nexus** between legitimate state interests and the conditions imposed on the property owner; **AND**
2. A **rough proportionality** between the burden imposed by the conditions on the property owner and the impact of the proposed development.
48
# LOW
PRIVILEGES AND IMMUNITES CLAUSE
The **Privileges and Immunities Clause** prohibits one state from discriminating against the citizens of another state (does not apply to corporations or aliens). Out-of-state citizens are protected against discrimination with respect to any **fundamental rights** or **essential activities** (e.g., pursuit of employment, transfer of property, engaging in the political process, etc.).
**However**, discrimination against out-of- state citizens may be valid if the state can show a **substantial reason** for the difference in treatment. A substantial reason exists if:
1. The out-of-state citizens either cause or are part of the problem that the state is attempting to solve; **AND**
2. There are no less restrictive means to solve the problem.
49
# lowest
EX POST FACTO LAWS
The state or federal government may **NOT** pass an **ex post facto law**. An ex post facto law is a law that **retroactively alters criminal offenses** or punishments in a **substantially prejudicial manner** for the purpose of punishing a person for **some past activity**.
A statute retroactively alters a law in a substantially prejudicial manner if it:
1. Makes criminal an act that was **innocent** when done;
2. Prescribes **greater punishment** for an act than was prescribed when it was done; OR
3. **Reduces the evidence required** to convict a person of a crime from what was required when the act was done.
50
# lowest
BILLS OF ATTAINDER
**Bills of attainder** are legislative acts that inflict punishment on individuals **without a judicial trial**. Both state and federal governments are prohibited from passing bills of attainder.
51
# lowest
FREEDOM NOT TO SPEAK
The freedom to speak includes the **freedom not to speak**. Thus, the government generally **cannot** require people to salute the flag or display other messages with which they disagree (e.g., a person need not display the state motto "live free or die" on a license plate).
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
The freedom can extend to **symbolic acts** undertaken to communicate an idea (e.g., wearing a black armband to protest war), although the government may regulate such acts if:
1. The government has an **important** interest **independent of the suppression of speech**; AND
2. The incidental burden on speech is **no greater than necessary** to further that interest.
52
# LOW
OVERBREADTH DOCTRINE
Under the **overbreadth doctrine**, if a regulation of speech or speech-related conduct punishes a **substantial amount of protected speech** in relation to its plainly legitimate sweep, the regulation is **facially invalid**. (e.g., a regulation outlawing **ALL** 1st Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote **ANY** cause without first obtaining a permit).
53
# LOW
VOID FOR VAGUENESS DOCTRINE
A statute or regulation is **void for vagueness** if it does not put the public on **reasonable notice** as to what is prohibited.
54
# LOW
PRIOR RESTRAINTS (CENSORSHIP)
A prior restraint is a regulation of speech that occurs **before** its expression. Generally, prior restraints are presumed to be unconstitutional with limited exceptions, including:
1. There is a **particular harm** to be avoided (e.g., restraining a newspaper from publishing troop movements).
2. **Procedural safeguards** are provided to the speaker (e.g., the standards must be narrowly drawn, reasonable, and definite).
55
# MED
CONTENT-BASED SPEECH REGULATIONS
Speech regulations are **content-based** if they prohibit communication of **specific ideas**.
It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech (e.g., obscenity, defamation, etc.).
56
# MED
CONTENT-NEUTRAL SPEECH REGULATIONS
**Content-neutral speech** regulations generally must:
1. Advance **important** interests **unrelated to the suppression of speech**; AND
2. **Not burden substantially more speech than necessary** to further those interests.
57
# MED
CONDUCT-BASED TIME, PLACE, AND MANNER SPEECH REGULATIONS
The government has power to regulate the **conduct associated** with speech (**time, place, and manner**), although the breadth of this power depends on whether the forum involved is a *public or nonpublic forum*.
58
# MED
CONDUCT-BASED SPEECH REGULATIONS IN PUBLIC FORUMS
Public property that has historically been open to speech-related activity is called a **public forum** (e.g., streets, sidewalks, and public parks). Public property that has not historically been open to speech-related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy is called a **designated public forum** (e.g., schoolrooms that are open for after-school use by social, civic, or recreation groups). The government may regulate speech in public forums and designated public forums with **reasonable** *time, place, and manner* regulations that:
1. Are **content-neutral** (i.e., are subject matter and viewpoint neutral)
2. Are **narrowly tailored** to serve an important government interest; AND
3. Leave open **alternative channels** of communication.
59
# MED
CONDUCT-BASED SPEECH REGULATIONS IN NONPUBLIC FORUMS
Government property that has not historically been linked with speech and assembly but has been opened for specific speech activity is called a **limited public forum** (e.g., school gym opened to host a debate on a particular community issue).
Government property that has **not** historically been linked with speech and assembly and has **not** been opened for specific speech activity is called a **nonpublic forum** (e.g., military bases, schools while classes are in session, government workplaces, etc.).
The government may regulate speech in **limited public forums** and **nonpublic forums** if the regulations are:
1. **Viewpoint neutral**; AND
2. **Reasonably** related to a **legitimate** government purpose
60
# MED
CATEGORIES OF UNPROTECTED SPEECH
To be valid, restrictions on the **content** of speech must be **necessary** to achieve a **compelling** government interest. The government has a compelling interest in the following categories of speech, which are deemed "unprotected speech" under the 1st Amendment:
1. Inciting **imminent lawless** action;
2. **Fighting words**;
3. **Obscenity**;
4. **Defamatory speech**; AND
5. ***Some*** commercial speech
61
# LOW
INCITING IMMINENT LAWLESS ACTION
Speech can be restricted if it creates a **clear and present danger** of **imminent lawless action**. It must be shown that that:
1. Imminent illegal conduct is **likely**; AND
2. The speaker **intended** to cause it.
62
# LOW
FIGHTING WORDS
Speech can be limited if it constitutes **fighting words**.
Fighting words are **personally abusive words** that are likely to **incite immediate physical retaliation** in an average person.
The Supreme Court will **not** tolerate fighting words statutes that are designed to *punish only certain viewpoints* (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender).
63
# lowest
OBSCENITY
Obscene speech is **not** protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the **average person**:
1. Appeals to the **prurient interest** in sex, using a **community standard**;
2. Is **patently offensive**; AND
3. Lacks serious literary, artistic, political, or scientific value, using a **national reasonable person standard**.
64
# lowest
COMMERCIAL SPEECH
Generally, commercial speech (e.g., advertising) is afforded 1st Amendment protection if it is **truthful**. However, commercial speech that proposes **unlawful activity** or that is **false, misleading, or fraudulent** may be restricted as unprotected speech. Any other regulation of commercial speech will be upheld only if it:
1. Serves a **substantial** government interest;
2. **Directly advances** that interest; AND
3. Is **narrowly tailored** to serve that interest.
65
# lowest
FREEDOM OF ASSOCIATION
**Freedom of Association** protects the right to form or participate in any group, gathering, club, or organization without government interference.
**However**, the government may infringe upon this right if they can satisfy strict scrutiny. A person may only be punished or deprived of **public employment** based on association if that individual:
1. Is an active member of a **subversive organization**;
2. Has **knowledge** of the organization's illegal activity; **AND**
3. Has a **specific intent** to further those illegal objectives.
66
# lowest
FREE EXERCISE CLAUSE
The **Free Exercise Clause** prohibits government from punishing someone on the basis of her **religious beliefs or interfering with her exercise of religion**.
However, the government can deny benefits or impose a restriction on someone based on her religious beliefs so long as there is a **compelling interest** that satisfies **strict scrutiny** (the Supreme Court has never found an interest so compelling that it justifies such action).
67
# lowest
ESTABLISHMENT CLAUSE
The **Establishment Clause**, along with the Free Exercise Clause, compels the government to pursue a course of **neutrality** toward religion.
Government action challenged under the Establishment Clause will be found **invalid, unless** the action:
1. Has a **secular purpose**;
2. Has a **primary effect that neither advances nor inhibits religion**; AND
3. Does **not** produce **excessive government entanglement** with religion.
