Constitutional Law

Question 1

Where do we ALWAYS start in a constitutional law essay?

Answer 1

Always determine if we need to analyze standing, state action, ripeness, mootness, and maybe supremacy.

Standing is an issue if there is a plaintiff bringing a lawsuit, not if there’s a question of whether a new law will be ruled constitutional. State action should always be addressed.

Question 2

Standing

Answer 2

An individual has standing if they can demonstrate an injury-in-fact, causation, and redressability.

Mnemonic - I C RED

Question 3

Third-Party Standing

Answer 3

Third-party standing requires the plaintiff to show that he has individual standing, a special relationship to the third-party, and that it is difficult for the third-party to assert his own rights.

Question 3

Organizational Standing

Answer 3

Organizational standing requires the members have standing in their own right, their interests are related to the organization’s, and the case does not require the participation of all members.

Question 3

State Action

Answer 3

For an action to violate the constitution, there must be government infringement of constitutional rights. Litigants must show the action is attributable to the state, including through a private actor if they are performing actions that are traditionally public functions or the state is heavily involved in the activity.

Question 4

Ripeness

Answer 4

A case will not be heard if there is not yet a live controversy or immediate threat of harm.

Question 5

Mootness

Answer 5

A case will not be heard if a live controversy existed at the time the complaint was filed but has since been eliminated, except controversies capable of repetition yet evading review.

Question 6

Supremacy Clause

Answer 6

The Supremacy Clause states that the Constitution is the supreme law of the land. Any state law that directly conflicts with federal law, impedes the objectives of federal law, or regulates an area of law traditionally occupied by Congress will be preempted by federal law.

Question 7

Conflict Preemption

Answer 7

Where a state law is inconsistent with a valid federal law covering the same subject matter, the state law is invalid.

Question 8

Field Preemption

Answer 8

Where the federal government intends to occupy the entire field, the states cannot regulate in that field, even with consistent laws.

Question 9

Dormant Commerce Clause

Answer 9

The Dormant Commerce Clause restricts the states and local governments from regulating activity that affects interstate commerce if the regulation is discriminatory or unduly burdensome.
If a state law discriminates against out of state commerce, it is invalid unless the law is necessary to achieve an important, non-economic government interest and there are no other nondiscriminatory means to achieve that purpose.
If a state law is unduly burdensome, it is invalid unless it is rationally related to a legitimate government interest and the burden imposed on interstate commerce is outweighed by the benefits to the state.

Discriminatory or Nondiscriminatory; Undue Burden on Interstate Commerce

Remember - if federal governmental action is involved, the Commerce Clause is at issue; if state governmental action is invovled, the Dormant Commerce Clause is at issue (the call of the question may generally refer to the Commerce Clause and may not make this distinction).

Look for state legislation requiring all individuals/companies to do something, requirements for some companies and not others, giving discounts to some companies but not others, or a city banning or limiting out-of-towner use/access to state facilities.

Question 10

Market Participant Exception

Answer 10

When the state is not acting as a regulator, bur rather a market participant, it may favor local interests over non-local interests.

For Dormant Commerce Clause

Question 11

Commerce Clause

Answer 11

Congress has the power to regulate the i) channels and ii) instrumentalities of interstate commerce, as well as iii) any activity that substantially affects interstate commerce.

Channels - highways, waterways, airways
Instrumentalities - cars, trucks, ships, airplanes
Substantial effect - presumed if activites are economic in nature, otherwise weigh factors present

Question 12

Taxing and Spending Clause

Answer 12

The Taxing and Spending Clause gives Congress the right to tax and spend for the general welfare. Congress may also condition the receipt of federal funds so long as the condition is related to which the funds are granted and not unduly coercive. Congress’ spending power is plenary and proper so long as the spending serves the general welfare.

Question 13

War and Defense Powers

Answer 13

Congress has the power to declare war and raise and support the armed forces.

Question 14

Independent and Adequate State Grounds

Answer 14

The Supreme Court will not review a case where there are independent and adequate state grounds for the state court’s decision, even if there is a federal question involved.

Question 15

Checklist - Powers of Congress

Answer 15

Congress’ powers are enumerated by the constitution, meaning there must be a source of power for any congressional action. Congress has the following enumerated powers:
* Regulate commerce
* Taxing and spending
* War powers
* Naturalization
* Bankruptcy
* Power to enforce post-civil war amendments (13th, 14th, 15th)

Question 16

Necessary and Proper Clause

Answer 16

The Necessary and Proper Clause grants Congress broad authority to enact laws that shall be necessary and proper to execute any of their enumerated powers. The law need only be rationally related to the implementation of a constitutionally enumerated power.

Question 17

Checklist - Powers of Judiciary

Answer 17

Federal judicial power allows federal courts to review cases:
* Arising under the Constitution or laws of the United States
* Between two or more states
* Between citizens of different states
* Between a state or its citizens and a foreign country/citizen

Exception - independent and adequate state grounds

Question 18

Checklist - Powers of Executive Branch (President)

Answer 18

• Execution of laws made by Congress
• Supervise the executive branch
• Issue executive orders (valid unless inconsistent w/ congressional statute or specific provision of Constitution)
• Make treaties, subject to Senate approval
• Speak for the United States regarding foreign policy and negotiate w/ foreign countries
• Appoint ambassadors
• Appoint top-level federal officers subject to Senate approval
• Issue pardons for federal offenses, except impeachment
• Veto bill passed by Congress (must do in entirety, no line-item veto)
• Executive privilege to refuse to disclose confidential info relating to performance of duties

Question 19

Privileges and Immunities Clause of Article IV

Answer 19

The Privileges and Immunities Clause of Article IV prevents a state or local government from intentionally discriminating against noncitizens with respect to fundamental rights or essential activities. Discrimination against out-of-state citizens may be valid if the state can show i) a substantial reason for the differnce in treatment and ii) there are no less discriminatory alternatives available.

Notes:
* The clause is NOT applicable to corporations or aliens - if a company is involved, state the rule and one line of analysis indicating a company is involved, thus making the clause inapplicable
* Essential activities are things like pursuit of employment/right to support oneself, engage in business, and access state courts
* Distinguish commercial activities from recreational (e.g., is the person using a hunting license to make money like a tour guide or just for fun)
* Often tested with Dormant Commerce Clause! They apply different standards, but test the same issue, so facts triggering one will trigger the other

Question 20

Contracts Clause

Answer 20

The Contracts Clause prevents state governments from passing laws that retroactively and substantially impair existing contracts. If the state is substantially impairing private contracts, the law must be reasonable and appropriate and serve a significant and legitimate public purpose. The test for a public contract is similar, but requires the law be necessary to serve an important public purpose.

Question 21

Tenth Amendment

Answer 21

The Tenth Amendment provides that the powers not delegated to the federal government nor prohibited by the Constitution are reserved to the states.

Question 22

Eleventh Amendment

Answer 22

A state is not subject to suit in federal courts by a private party without the consent of the state. Suits against states or local entities by other states or the federal government are permitted, as well as suits for injunctive relief against state officials. States have sovereign immunity from private damage suits brought against the state in the states’s own courts.

Question 23

Delegation of Legislative Power

Answer 23

Congress can delegate regulatory powers to other branches of government if there are intelligible principles that govern the exercise of the delegated authority. Congress cannot delegate its legislative authority to make law.

Question 24

Freedom of Religion

Answer 24

The First Amendment provides that Congress shall make no law respecting an establishment of religion or prohibiting the exercise thereof. Both the Establishment Clause and the Free Exercise Clause have been incorporated into the Due Process Clause of the Fourteenth Amendment and are therefore applicable to the states.

Question 25

Free Exercise Clause

Answer 25

The Free Exercise Clause bars any law that prohibits or seriously burdens the free exercise of religion. Laws designed to interfere with religion must meet strict scrutiny, whereas laws of general applicability that result in unintentional burdens are constitutional.

Note - under the Free Exercise Clause people are allowed to believe whatever they want, it’s religious conduct that is not absolute

Question 26

Establishment Clause

Answer 26

The Establishment Clause prohibits the government from establishing a religion or preferring a particular religion over another. A law that facially preferences one religion over another must survive strict scrutiny, whereas a law that has an impact of favoring religion is reviewed under the “historical practices and understandings” test, which imposes a presumption of constitutionality for longstanding monuments, symbols, and practices.

Question 27

Freedom of Speech

Answer 27

The First Amendment protects an individual’s right to free speech and is applicable to the states through the Fourteenth Amendment.

Question 28

Content-Based Restrictions

Answer 28

Content-based restrictions are those that forbid the communicative impact of the expression and must satisfy strict scrutiny.

Question 29

Content-Neutral Restrictions

Answer 29

Content-neutral restrictions are those where the regulation is aimed at something other than the communicative impact of the expression. They are permitted if they serve a significant government interest, are narrowly tailored to serve that interest, and leave open alternative channels of communication.

Question 30

Time, Place, and Manner Restrictions

Answer 30

The government’s ability to regulate speech varies with the forum in which the speech takes place. Government property that is open for speech falls into one of three categories: traditional public forums, designated public forums, and nonpublic forums.

Question 31

Traditional Public Forums

Answer 31

Traditional public forums are forums that are generally open to the public. Speech restrictions must be content and viewpoint neutral, serve a significant government interest, be narrowly tailored to serve that interest, and leave open alternative channels of communication. Content-based restrictions are subject to strict scrutiny.

Mnemonic - “CANS” (content-neutral, alternative channels, narrowly tailored, significant interest)
Example - public sidewalks (cans on the sidewalk)

Question 32

Designated Public Forum

Answer 32

A designated public forum is one which is not historically open for public speech but can be opened at the government’s discretion. Speech restrictions in designated public forums must be content and viewpoint neutral, serve a significant government interest, be narrowly tailored to serve that interest, and leave open alternative channels of communication. Content-based restrictions are subject to strict scrutiny.

Example - public library meeting room

Question 33

Non-Public/Limited Public Forums

Answer 33

Limited public forums are forums that are opened for limited use by certain groups or discussion of certain subjects. Non-public forums are forums that are closed to the public. Speech restrictions in these forums must be viewpoint-neutral, and be rationally related to a legitimate government interest.

Example - courtrooms are non-public forums, meeting room at city hall is limited public forum
Note; while non-public and limited public forum restrictions must be viewpoint neutral, they need not be subject matter neutral.

Question 34

Commercial Speech

Answer 34

Commercial speech is protected unless it is false, misleading, or unlawful. The government may restrict commercial speech (advertising) only if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored such that there is a reasonable fit to serve that interest (i.e., need not be the least restrictive means).

Question 35

Symbolic Speech

Answer 35

Symbolic speech is the freedom to communicate an idea by use of a symbol or communicative conduct. The government may restrict symbolic speech if the regulation is i) within the constitutional power of the government to enact, ii) furthers an important governmental interest iii) unrelated to the suppression of speech (i.e., content-neutral) and iv) prohibits no more speech than necessary.

Mnemonic - “PISS” (power to enact, important interest, suppression, no more speech than necessary)

Question 36

Limitations on Free Speech Regulations

Answer 36

The government is limited in how it may regulate speech. Regulation of speech must not be a prior restraint, overbroad, vague, or determined by unfettered discretion.

Question 37

Prior Restraint

Answer 37

Prior restraints restricts speech before it occurs. Prior restraints are only allowed when the government can show that some irreparable or serious harm to the public will occur and there must be narrowly drawn, reasonable, and clearly defined standards and a prompt review of the validity of the restraint (i.e., procedural safeguards).

Question 38

Overbroad

Answer 38

A speech regulation is unconstitutionally overbroad when it prohibits more speech than necessary (i.e., protected and unprotected speech).

Question 39

Vague

Answer 39

A speech regulation is unconstitutionally vague when it gives no reasonable notice as to what speech is prohibited.

Question 40

Unfettered Discretion

Answer 40

A permit regulation is unconstitutional if it leaves unfettered discretion to the decision maker by not setting forth narrow and specific grounds for denying a permit, or where the permit mechanism is not closely related to the regulation’s objective. Further, the regulation must be a reasonable means of maintaining public order.

Question 41

Freedom of Association

Answer 41

The First Amendment recognizes an individual’s right to freely associate with other individuals in groups. The government may not punish or prohibit group membership by denying a public job or benefit unless the law meets strict scrutiny.

Note - freedom of association only applies to freedoms protected by the first amendment, not for social purposes.

Question 42

Obscentity

Answer 42

Obscenity is not protected speech. To be considered obscene, the material must i) appeal to the prurient interest, ii) depict sexual conduct in a patently offensive way, and iii) lack serious literary, artistic, political, or scientific value.

Mnemonic - “PeePee Art” (prurient interest, patently offensive, artistic value)

Question 43

Due Process

Answer 43

Due process provides that no person shall be deprived of “life, liberty, or property” without due process of the law and binds the states through the Fourteenth Amendment and the federal government through the Fifth Amendment. There are two types of due process - substantive and procedural.

Question 44

Substantive Due Process

Answer 44

Substantive due process limits the government’s ability to infringe upon individual rights, fundamental and non-fundamental. If a fundamental right is involved, strict scrutiny applies. If a non-fundamental right is involved, rational basis applies.

Substantive due process triggers:
* Bills requiring specific individuals to do something in violation of their fundamental rights (e.g., mandatory sterilization)
* Denying benefits or permits to individuals or groups
* Penalizing companies or individuals financially
* Preventing individuals from taking part in activities

Question 45

Procedural Due Process

Answer 45

Procedural due process requires the government to use fair process before intentionally depriving a person of life, liberty, or property.

Liberty interests include physical liberty as well as intangible liberties such as the right to drive or raise a family. Property interets include real and personal property, public education, and government employment/benefits/licenses.

Steps for PDP Analysis:
1. Right(s) Affected
2. Amount of Process Due

Question 46

Fundamental Rights Test (SDP)

Answer 46

Fundamental rights subject to Substantive Due Process include First Amendment rights, interstate travel, voting, and the right to privacy (e.g., marriage, procreation, contraceptives, living with family, etc.). Strict scrutiny applies to fundamental rights under SDP.

Mnemonic - “First VIP”

Question 47

Non-Fundamental Rights Test (SDP)

Answer 47

Regulation of non-fundamental rights is subject to rational basis review and are typically social or economic in nature, such as education and employment.

Question 48

Amount of Process Due (PDP)

Answer 48

The amount of process due looks at the interest affected, the value of additional safeguards, and the burden of additional processes.

Note - this is a three part test, use different headings for each part

Question 49

Equal Protection Clause

Answer 49

The Equal Protection Cause (EPC) prohibits the government from treating similarly situated persons differently, and is applicable to the federal government through the Fifth Amendment and the States through the Fourteenth Amendment.

Steps for EPC analysis:
1. Find state action, as always
2. Determine who is being treated differently and why (classification)
3. Determine level of scrutiny that applies to that classification (NOTE - there can be more than one classification in a fact pattern! e.g., fundamental right, gender, age)
4. Analyze level of review with the facts (particularly looking at government objective)

Question 50

Discrimination Requirement (EPC)

Answer 50

The plaintiff must show discrimination. The law may be facially discriminatory, discriminatory as applied to the plaintiff, or have a discriminatory motive. Intentionally different treatment is required for heightened scrutiny.

Question 51

Classification Scheme (EPC)

Answer 51

Suspect classifications include only those based on race, alienage, or national origin and are subject to strict scrutiny.

Quasi-suspect classifications include only those based on gender and illegitimacy and are subject to intermediate scrutiny.

Non-suspect classifications include everything else, including those based on age, wealth, disability, and education and are subject to rational basis reivew.

Question 52

Strict Scrutiny (EPC)

Answer 52

Strict scrutiny requires the government to prove that the classification is necessary to achieve a compelling government interest.

Question 53

Intermediate Scrutiny (EPC)

Answer 53

Intermediate scrutiny requires the government to prove that the classification is substantially related to an important government interest.

Question 54

Rational Basis Review

Answer 54

Rational basis review requires the plaintiff to show that the classification is not rationally related to a legitimate government interest.

Question 55

Takings Clause

Answer 55

The Takings Clause of the Fifth Amendment provides that private property may not be taken by the government for public use without just compensation.

Headings for Takings Clause Analysis
1. Government Action (federal or state)
2. Private Property
3. Public Use
4. Type of Taking (subheadings - physical or regulatory)
5. Just Compensation

Question 56

Commandeering

Answer 56

Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or administer a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly. However, through the use of the taxing and spending powers, Congress may encourage state action that it cannot directly compel.

Question 57

Type of Taking

Answer 57

A taking can be physical or regulatory. A physical taking occurs when the government actually appropriates, destroys, or physically occupies the property. A regulatory taking occurs when a law has the effect of decreasing the value of the plaintiff’s property, and can be total or partial in nature.

Question 58

Public Use

Answer 58

Public use is liberally construed and satisfied if the state’s use of the property is rationally related to a conceivable public purpose, which can include a public benefit rather than actual public usage.

Question 59

Just Compensation

Answer 59

Just compensation is measured by the fair market value of the property at the time of the taking.

Question 60

Total or Partial Taking

Answer 60

A total taking occurs when the regulation leaves no economically viable use of the property. A partial taking occurs when the regulation affects some economic use of the land, but there is still some economically viable use of the property. To make a determination, the court will weigh:
1) the character of the regulation, including the benefit to society,
2) the economic impact on the claimant, and
3) the reasonable, investment-backed expectations of the claimant.

Mnemonic - Cheese Eating Rats