Constitutional Law Flashcards
1
Q
Federal courts can hear a matter only if there is a “case or controversy.” Whether there is a “case or controversy” (or justiciable) depends on:
A
(1) What the case is requesting (no advisory opinions)
(2) When it is brought (is it ripe or moot)
(3) Who is bringing it (does the plaintiff have standing?
2
Q
What are Advisory Opinions?
A
decisions that (1) lack an actual dispute between adverse parties, OR (2) any legally binding effect on the parties.
3
Q
Ripeness
A
Courts wait until laws and policies have been formalized and can be felt in concrete ways. This means that pre-enforcement reviews of laws or policies are generally not ripe. Unless: (1) issues are fit for decision (legal decision that doesn’t depend on factual development. Factual development meaning relies on uncertain or contingent future events that might not occur) AND (2) the plaintiff would suffer substantial hardship in the absence of review.
Bars consideration of claims BEFORE they have been developed
4
Q
Mootness
A
Plaintiff must show suffering from an ongoing injury.
Bars consideration of claims AFTER they have been developed.
5
Q
Standing (3 components)
A
Injury, Causation, and Redressability
6
Q
Injury in Fact
A
to have standing, a person needs to show an injury in fact, which requires both: (1) a particularized injury: an injury that affects the plaintiff in a personal and individual way AND (2) a concrete injury: one that actually exists (that is, not hypothetical).
7
Q
For a taxpayer to have standing as such____
A
Congress’s spending power must be involved. Thus, for example, a person would not have standing as a taxpayer to challenge federal government grants of surplus property to religious groups (because Congress is using the property power rather than the spending power) or expenditures of general executive branch funds (because the executive branch is doing the spending, not Congress).
8
Q
Standing for Free Speech Overbreadth Claims.
A
A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary (in other words, that the restriction was overbroad), even if that person’s own speech would not be protected under the First Amendment. Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment.
However, this rule does NOT apply to restrictions on COMMERCIAL speech.
9
Q
Causation (in standing req.)
A
There must be a causal connection between the injury and the conduct complained of.
10
Q
Redreassability
A
A decision in the litigant’s favor must be capable of eliminating their harm
11
Q
Sovereign Immunity and the Eleventh Amendment
A
Bars a private party’s suit against a state in federal and state courts. CAN’T SUE STATES Similarly, sovereign immunity bars claims against a state in federal and state agencies.
12
Q
A plaintiff may have standing to enforce a federal statute if they are within the “__________” Congress meant to protect (that is, a court is likely to find standing if it concludes that Congress intended the statute to protect such persons and also intended to allow private persons to bring federal court actions to enforce the statute).
A
Zone of interests
13
Q
Sovereign Immunity and the Eleventh Amendment EXCEPTIONS
A
-waiver: express or structural (most states have expressly waived it, at least to limited extent, in their tort claims act)
-Local governments and entities (ex: police departments, a city, or county)
-STATES can sue other states!
-FEDERAL GOV. can sue states.
-Bankruptcy proceedings (person can sue a state in relation to a bankruptcy proceeding).
-Can sue state officials (injunctive relief to stop violation of the Constitution or federal law, even if this will require prospective payment from the state OR money damages from their own pockets)
-Congress abrogates (civil rights laws under the 14th Amend.)
14
Q
Political Questions
A
will not be decided. There are issues (1) constitutionally committed to another branch of government OR (2) inherently incapable of judicial resolution.
15
Q
Adequate and Independent State Grounds
A
If a state court decision rests on two grounds, one that’s state law and one that’s federal law, and if the Supreme Court’s reversal of the federal law ground will not change the result in the case, then the Supreme Court can’t hear the case.
16
Q
ENUMERATED AND IMPLIED POWERS
A
Congress can exercise the powers ENUMERATED in the Constitution (under Article I, Section 8) plus any powers NECESSARY AND PROPER to carry out any of its enumerated powers.
17
Q
Congress does not have general police power
A
Congress does not have general police powers (unlike states)
-EXCEPTIONS: Federal lands, native american reservations and D.C.
18
Q
The Necessary and Proper Clause
A
Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative powers enumerated in Article I, as long as that law doesn’t violate another provision of the Constitution. This is a low hurdle—laws can be foolish, just not irrational.
-Standing alone not basis for federal power, must be in furtherance of enumerated power (linked to another federal power).
18
Q
Taxing and Spending Power
A
Congress has the power to TAX AND SPEND to promote general welfare. Taxing and spending may be for ANY PUBLIC PURPOSE not prohibited by the Constitution.
BUT, Congress CAN’T DIRECTLY LEGISLATE for the general welfare. So, nonspending regulations can’t be supported by the General Welfare Clause.
19
Q
Spending Power Conditions (“strings”)
A
Under the spending power, Congress can impose conditions onthe grant of money to state or local governments.
These conditions are valid if:
(1)-clearly stated
(2)-related to purpose of spending program
(3)-constitutional
(4)-not unduly coercive
20
Q
When a spending power condition is unduly coercive
A
Whether states could choose to turn down new money in turn of the existing money.
21
Q
Federal Taxes under the Taxing and Spending Power
A
Most federal taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare.
Rarely, a tax may be regarded as an
impermissible regulatory “penalty”— for example, if it seeks to compel rather than simply influence behavior.
22
Q
Commerce Power
A
Congress can regulate all foreign and interstate commerce, as well as commerce with indian tribes.
23
Q
To be within Congress’s Commerce Clause Power, a federal law regulating INTERSTATE COMMERCE must EITHER:
A
(1) Regulate the CHANNELS of interstate commerce (for example, highways, waterways, telephone lines, the internet)
(2) Regulate the INSTRUMENTALITIES of interstate commerce (for example, planes, trains, automobiles) and persons and things in interstate commerce OR
(3) Regulate ACTIVITIES THAT HAVE A SUBSTANTIAL EFFECT on interstate commerce
24
When can Congress regulate INTRASTATE activity?
When Congress attempts to regulate intrastate (in other words, local) COMMERCIAL activity under the third prong (activities that have a substantial effect on interstate commerce) the Court will uphold the regulation if it can think of a RATIONAL BASIS on which Congress could conclude that the activity IN THE AGGREGATE substantially affects interstate commerce.
25
Can Congress regulate NONCOMMERCIAL INSTRASTATE activity?
If the regulated intrastate activity is NOT commercial or economic, the Court generally will NOT aggregate the effects and will uphold the regulation ONLY IF Congress can show that it nonetheless has a DIRECT SUBSTANTIAL ECONOMIC effect on interstate commerce, which Congress generally won’t be able to do.
26
Tenth Amendment Limitation on Congress's Commerce power
The Court has interpreted the Tenth Amendment to preclude Congress from regulating NONECONOMIC INTRASTATE ACTIVITY in areas TRADITIONALLY REGULATED BY STATE OR LOCAL GOVERNMENTS.
Example: Congress cannot criminalize intrastate domestic violence against women, even though in the aggregate such violence substantially affects interstate commerce because of the loss of work, travel, and spending by victims.
26
The Commerce Clause gives Congress power only to regulate EXISTING COMMERCIAL ACTIVITY; it does NOT give Congress power to ___________.
Compel Activity.
27
Commerce Clause power to Prohibit Private Discrimination
Under the commerce power, Congress may prohibit PRIVATE discrimination in activities that might have a substantial effect on interstate commerce.
Contrast that with PUBLIC discrimination (that is, by state or local governments), which Congress can DIRECTLY regulate under its Fourteenth Amendment enforcement power.
Note: Because almost any activity taken cumulatively might have a substantial effect on interstate commerce, the Commerce Clause is an important basis for civil rights laws.
28
War and Related Powers
The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
29
Investigatory Power
Congress has a broad implied power to investigate to secure information for potential legislation or other official action (such as for gathering information relating to impeachment). Investigation must be expressly or impliedly authorized by the appropriate congressional house.
Under this power Congress can subpoena the President's personal info. The subpoena must advance a LEGITIMATE LEGISLATIVE PURPOSE, but the Court will also BALANCE, Congress's interests in obtaining he info against the burdens on the President.
30
Property Power
Congress can dispose of and make rules for territories and other properties of the United States. Although there is no express limitation on Congress’s power to DISPOSE of federal property, federal TAKINGS of private property (eminent domain) must be pursuant to an enumerated power under some other provision of the Constitution.
31
Postal Power
Congress has exclusive postal power.
Congress may classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of citizens of the general mail "privilege."
32
Power Over Citizenship
RESIDENT aliens must get NOTICE AND A HEARING before they can be deported.
Congress can't take away the citizenship of any citizen---native-born or naturalized---without their consent.
33
Delegation of Legislative Authority
Congress can delegate power but must include intelligible standards
-usually, general standard suffices.
34
SEPARATION OF POWERS—THE REQUIREMENT OF BICAMERALISM AND PRESENTMENT
To pass a law, Congress must use BICAMERALISM (passage of a bill by both houses of Congress) followed by PRESENTMENT to the President for signature or veto.
Attempts by Congress to create laws or control the enforcement of laws without bicameralism and presentment are invalid.
35
No Line Item Vetoes
The requirements of bicameralism and presentment mean that Congress cannot give the President a line item veto power—that is, giving the President the power to cancel parts of a bill while approving others is an unconstitutional delegation of legislative power. The President can only approve or reject a bill as a whole.
36
SPEECH OR DEBATE CLAUSE—IMMUNITY FOR FEDERAL LEGISLATORS
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.
Note: Immunity does NOT cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
37
Implied Presidential Powers
Strongest when authorized by Congress.
if the president acts with the implied or express authority of Congress, presidential authority is at its maximum and the actions are likely valid.
37
THE EXECUTIVE POWER
Presidential power derives from Article II
38
Treaty Power
Negotiated by president
Senate approved by 2/3 Senate
Constitution>(Federal law=Treaties)> State law
Conflicts with federal law: the last in-time prevails
39
Executive Agreements
no senate approval
Constitution > Federal law> Executive Agreements> state law
(federal statutes and treaties prevail over executive agreements)
40
Tenth Amendment
Powers not granted to federal gov. are reserved to states or ppl.
41
State General Police Powers
states can regulate the health, safety, and welfare of their people.
Such regulations will be upheld if they are RATIONAL, UNLESS they burden a fundamental right or involve a suspect or quasi-suspect classification
42
Anti-Commandeering
congress cannot compel states to enact state legislation or to administer federal programs.
Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, it’s possible the Court will use the Tenth Amendment to prohibit the tax.
Congress can incentivize states however (conditional grants)
43
Anti-Commandeering EXCEPTIONS
(1) Civil Rights:Under its Fourteenth Amendment enforcement powers, Congress may restrict states from discriminating in violation of equal protection or depriving rights protected by due process.
(2)Tax or Regulation Applying to BOTH State and Private Entities.
44
Preemption
Express (when congress says, federal law trumps, or federal law is the only game in town with respect to the subject of the law)
Implied (congress doesn’t expressly claim, but nonetheless federal law impliedly states)
—Conflict (between federal law and state law)
—State law impedes federal law (even if not direct conflict)
—Field preemption (such extensive federal reg. in a field, court will say congress impliedly preempted the entire field barring state law regardless if they conflict)
45
Supremacy Clause
a federal law may supersede or preempt state (or local) laws. Federal law includes the Constitution, federal statutes and regulations, treaties, and executive agreements.
46
Article IV Privileges and Immunities
Prohibits states from discriminating against out of state citizens:
---discrimination concerns either: impt. commercial activities & ability to earn a living OR fundamental rights
----only US citizen (aliens, corp. and other non citizens are out of luck)
----not absolute. (if state law is necessary to achieve important government purpose and no less restrictive means available/no alternatives)
----applies only if discrimination is INTENTIONALLY PROTECTIONIST!
NOTE: CORPORATIONS AND ALIENS ARE NOT PROTECTED BY THIS CLAUSE!!!! (In contrast they are protected by the EP and DPC of the 14th Amen. and they can claim a law violates the Dormant Commerce Clause)
47
Article IV Privileges and Immunities Clause and the Dormant Commerce Clause Relationship.
Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered in analyzing bar exam questions.
48
Fourteenth Amendment---Privileges of National Citizenship
States may not deny their citizens the privileges or immunities of NATIONAL citizenship (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right
to interstate travel).
Corporations are NOT protected by this Clause.
49
Regulation of Interstate Commerce
When Congress regulates interstate commerce, conflicting state laws
are superseded and even nonconflicting state or local laws in the
same field may be preempted.
50
Dormant Commerce Clause
State law can’t unduly burden interstate commerce.
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, the state or local government must NOT DISCRIMINATE AGAINST or UNDULY BURDEN interstate commerce. If it does, the state or local regulation will violate the Commerce Clause.
Even when Congress has not acted, the Commerce Clause restricts the state regulation of interstate commerce; states may not favor local economic interests or unduly burden interstate commerce.
51
Dormant Commerce Clause. Discriminatory state law is presumptively invalid.
BUT, valid if:
BALANCING TEST
(1) necessary to achieve important, noneconomic state purpose unrelated to protectionism AND (2) no non-discriminatory alternatives in achieving that purpose.
52
Dormant Commerce Clause: NONDISCRIMINATORY state law = presumptively valid but subject to BALANCING TEST
If a nondiscriminatory state law (that is, a law that treats local an out-of-state interests alike) burdens interstate commerce, it will be valid UNLESS the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available. Example: An Iowa statute banning trucks over 60 feet was
held to be invalid because the state showed no significant evidence of increased safety and the burden on commerce was substantial.
53
Dormant Commerce Clause:Nondiscriminatory Laws—Balancing Test: State Control of Corporations
A different standard may apply to statutes adopted by the state of incorporation regulating the internal governance of a corporation. Because of the states’ long history of regulating the internal governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld (for example, a state may deny voting rights to persons who acquire a controlling interest in a state corporation without approval from other shareholders, despite the impact that this may have on interstate commerce).
54
DORMANT COMMERCE CLAUSE—EXCEPTIONS
Congressional Approval (congress can choose to give states permission to discriminate against or burden interstate commerce)
Market participant: A state or local gov. MAY PREFER its own citizens in receiving benefits from gov. programs or in dealing with gov.-owned businesses. (states can give college discount to in-state residents for example)
-----HOWEVER, once a state sells state-owned resources, it cannot control what happens to the resource after that.
55
When a bar exam question involves a state regulation that affects the free flow of interstate commerce, you should ask:
Does the question refer to any federal legislation that might:
* Supersede the state regulation or preempt the field?
* Authorize state regulation otherwise impermissible?
If neither of these possibilities is dispositive, does the state regulation either discriminate against interstate or out-of-state commerce
or place an undue burden on the free flow of interstate commerce?
* If the regulation is discriminatory, it will be invalid unless:
---It furthers an important, noneconomic state interest and there are
no reasonable nondiscriminatory alternatives OR
----The state is a market participant
*If the regulation does not discriminate but burdens interstate commerce, it will be invalid if the burden on commerce outweighs the state’s interest.
56
When a question involves state taxation that affects interstate commerce, you should ask:
1. Does the question refer to any federal legislation that might (1) FORBID the state tax or PREEMPT the field, or (2) AUTHORIZE state taxation?
2. If neither of these possibilities is dispositive, does the state tax DISCRIMINATE against or UNDULY BURDEN the free flow of interstate commerce? If the state tax discriminates or is unduly burdensome
(no substantial nexus, unfair apportionment, or no fair relationship), it is invalid.
57
Other than the 13th Amendment on the ban of slavery, the Constitution regulates
ONLY GOVERNMENT ACTION, NOT PRIVATE ACTION.
58
Bill of Rights
By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits federal power.
However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states. Exceptions: The most notable exceptions to incorporation are: (1) the Fifth Amendment’s prohibition of criminal trials without a grand jury indictment and (2) the Seventh
Amendment’s right to a jury trial in civil cases.
59
Thirteenth Amendment
The gov. can prohibit racially discriminatory action by ANYONE (the government or a private citizen).
60
STATE ACTION DOCTRINE
Gov action needed for Constitution to apply.
-Laws
-Acts of gov. officials in official capacity
-NOT private action (EXCEPTION: activities traditionally and exclusively performed by gov.)
61
Fourteenth and Fifteenth Amendments
The Fourteenth Amendment prevents STATES from depriving any person of life, liberty, or property without due process and equal protection of law.
The Fifteenth Amendment prevents both the FEDERAL AND STATE GOVERNMENTS from denying a citizen the right to vote on account of race or color.
Generally, private conduct is not prohibited by these amendments—only where some state action is involved. (Purely private conduct may be prohibited, however, on a separate constitutional basis, such as the Commerce Clause.)
62
Rational Basis Standard
The law is upheld if it is RATIONALLY RELATED to a LEGITIMATE government purpose.
No fundamental rights or no suspect classifications involved.
BURDEN: person challenging the law.
63
Intermediate Scrutiny
Law is upheld if SUBSTANTIALLY RELATED to an IMPORTANT government purpose.
Quasi-suspect classifications are involved (that is gender and legitimacy)
BURDEN: unclear, usually the gov.
64
Property
“Property” includes not only personal and real property (whether it’s tangible or intangible), but also government benefits to which there
is an ENTITLEMENT (that is, a REASONABLE EXPECTATION of CONTINUED RECEIPT) under state or federal law. An abstract need or desire for (or a unilateral expectation of) a benefit is not enough.
64
What type of Process is required by procedural due process?
Notice
Hearing
Neutral Descisionmaker
64
Strict Scrutiny
The law is upheld if it is NECESSARY (that is the least restrictive means) to achieve a COMPELLING government purpose.
Regulations involving fundamental rights (that is, interstate travel, voting, and First Amendment rights or involving suspect classifications (that is, race, national origin, and alienage).
BURDEN: the government
65
PROCEDURAL DUE PROCESS
The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that a person has a right to a fair process when
the government deprives the person of life, liberty, or property.
Government negligence is insufficient to state a procedural due process claim. Instead, there generally must be an INTENTIONAL or
RECKLESS government action.
66
Hearing Required by Procedural Due Process
the type and extent of the hearing are determined by a balancing test that weighs:
-the important of the interest to the individual AND
-The value of specific procedural safeguards to that interest (that is, the risk of error from the current procedures used and the benefits of additional procedures), AGAINST
The government interest in fiscal and administrative efficiency (that is, the burden on the government from using additional procedures).
(greater deprivation more process required unless more gov. interests on the other side generally)
67
SUBSTANTIVE DUE PROCESS
Substantive due process guarantees that laws will be reasonable and not arbitrary. Substantive due process derives from the Due Process Clause of the Fifth Amendment, which applies to the federal government, and the Due Process Clause of the Fourteenth Amendment, which applies to state and local governments. The same tests are applied under each clause.
When a FUNDAMENTAL RIGHT is limited, strict scrutiny. All other cases, the RATIONAL BASIS standard generally applies.
68
Fundamental Rights Include:
All first amendment rights
the right to interstate travel
privacy-related rights
voting
68
Substantive Due Process and Equal Protection
FUNDAMENTAL RIGHTS
-gov denies everyone—>due process
-Gov denies target group —>due process + equal protection
69
What are the Privacy-Related Rights (strict scrutiny)
Marriage
Procreation
Use of contraception
Parental rights
Living with extended family
Interstate travel (equal treatment in new statement; some residency restrictions OK)
Right to vote.
----racial gerrymandering-->strict scrutiny
----partisan gerrymandering-->nonjusticiable political question
Right to bear arms.
---regulation standard--> consistent with historical tradition of firearm regulation
70
EQUAL PROTECTION
14th Amend. Equal protection clause—> states
5th amend. due process clause—> read to apply same principals to federal gov.
71
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. INTENT may be shown by:
(1) A law that is DISCRIMINATORY ON ITS FACE (that is, facial discrimination),
(2) A DISCRIMINATORY APPLICATION of a facially neutral law, or
(3) A facially neutral law with a DISPARATE IMPACT on a protected class of people (such as minorities)
Note: The second and third ways to show intentional discrimination (discriminatory intent) are the most difficult to prove. A discriminatory application or effect alone is not enough. The legislature’s discriminatory intent must be shown (for example, by evidence of a history of
discrimination).
72
Quasi-Suspect Classifications (Nonmarital Children)
Non-marital children (laws against entire class of this likely based on prejudice and thereby invalid in contrast laws within the class more likely valid).
Must be SUBSTANTIALLY RELATED to an IMPORTANT government interest.
Discriminatory regulations intended to punish nonmarital children are invalid,
72
SCHOOLS AND RACIAL CLASSIFICATION
(Equal Protection)
Segregation —> unconstitutional
Integration (busing) —> must be narrowly tailored to remedy past segregation.
-racial balancing doesn’t count.
Affirmative action in HIGHER education—> must be narrowly tailored to compelling interest
-Gov has compelling interest to remedy PERSISTENT AND READILY IDENTIFIABLE past gov. discrimination. (cannot be general past "societal discrimination")
-Promotion of diverse student body no longer counts (since 2023)
Redistricting plan drawn up predominately on the basis of race (strict scrutiny)
73
Alienage Classifications (Equal Protection)
Alienage=citizenship status
Federal gov: rational basis (classifications valid if not arbitrary and unreasonable)
State/local gov: usually strict scrutiny:
EXCEPTION: Rational basis review for:
----law that discriminate alien participation in state gov (for ex: voting, jury service, elective office) (not including notary publics), OR
----law limiting certain non-elective offices involving impt. public policy (for ex: police, probation officers, and primary and secondary teachers).
Undocumented aliens NOT a suspect class (rational basis).
EXCEPTION:Children of undocumented aliens: denial of free public education has been held invalid. BUT probably rational basis
-look for irrational animus (prejudice).
74
Quasi-Suspect Classifications (Gender)
Classification must be SUBSTANTIALLY RELATED to an IMPORTANT government purpose.
Government bears the BURDEN of showing "EXCEEDINGLY PERSUASIVE JUSTIFICATION" for the discrimination.
Gender classifications based on stereotypes are generally invalid, whereas those designed to remedy past discrimination or more likely upheld under intermediate scrutiny.
74
OTHER CLASSIFICATIONS under Equal Protection
All other classifications/ non fundamental rights get rational basis
-BUT, Animus (PREJUDICE) is NOT rational. [look for prejudice upon group not based on any rational reason. ]
75
The Taking Clause
The FIFTH Amendment provides that private property may only be taken (1) for public use AND (2) the government MUST pay just
compensation.
This rule is applicable to the states via the Fourteenth
Amendment.
Note that the Taking Clause is not a source of power for taking, but rather is a LIMITATION.
76
Is there a Taking?
The crucial issue is whether governmental action is a taking (requiring payment of just compensation) OR merely a regulation (not
requiring compensation). There’s no clear-cut formula for making this determination, but the following general guidelines are what you
should remember:
-Physical confiscation
-Permanent or regular physical occupation
-Temporary occupation=case-by-case analysis
EXCEPTION:
-development conditions
-public emergency.
77
Takings Clause. Temporary Occupations
Temporary occupations by the government MAY also be a taking, depending on factors like:
--the degree of invasion,
--the duration,
--the government’s intention,
--the foreseeability of the result,
--the character of the property, and
---the interference with the use of the property.
78
Takings Exceptions
(1) Development Exception
(2) Public Emergency Exception
79
Development Exception to the Takings Clause
Municipalities and local governments often impose conditions on landowners who seek building or development permits. These conditions might require the landowner to:
---(a) Convey Title: Transfer ownership of a portion of their property to the government (e.g., for use as public streets or parks).
---(b) Grant Easement: Allow the public to use part of their property (e.g., for public access pathways).
-Such conditions are known as "exactions." Exactions can be considered a form of regulatory taking.
However, they do not automatically constitute a taking that requires compensation if they meet TWO criteria established by the SCOTUS:
------(1)Essential Nexus: There must be a connection between the exaction and a legitimate government interest.
This means the condition imposed by the government must address a problem or impact directly related to the proposed development.
Example: If a development would increase traffic, requiring the landowner to provide land for a new road may address the traffic impact.AND
------(2)Rough Proportionality: The extent of the exaction must be roughly proportional to the adverse impact of the proposed development.
This means the burden placed on the landowner (e.g., the amount of land to be conveyed or the scope of the easement) must be proportional to the public impact caused by the development.
Example: If a small development causes minor increased traffic, it would be unreasonable to require the landowner to build a major highway. The required contribution should match the scale of the impact.
80
Public Emergency Exception to the Takings Clause
A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to a public emergency, such as war.
81
Regulatory Takings (2 approaches)
(1)Regulation leaves no economically viable use = Taking (brightline rule)
(2)Regulation decreases economic value (but does not completely deplete)-> apply balancing test and consider:
-----(a)economic impact
-----(b)investment-backed expectations
----(c)public interest
82
Takings Clause... PUBLIC USE req.
Rationally related to legitimate public health, safety, or welfare (defined broadly)
83
The Contract Clause
limits the ability of state and local governments to enact laws that retroactively impair contract rights. It doesn’t affect contracts not yet made.
State/local laws can’t retroactively impair K rights.
(no comparable clause to the federal gov. but flagrant contract impairment would violate 5th amend.)
84
Contract Clause
Private Contracts---Intermediate Scrutiny
Legislation that SUBSTANTIALLY impairs an existing private contract is
invalid UNLESS the legislation:
----Serves an IMPORTANT and LEGITIMATE public interest, AND
-----Is a REASONABLE and NARROWLY TAILORED means of promoting that interest
85
Contract Clause
Public Contracts---Heightened Scrutiny
Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation reduces the contractual burdens on the state.
86
EX POST FACTO LAWS
Can’t retroactively alter CRIMINAL liability (only criminal cases)
includes retroactively:
--criminalizing conduct when legal when done,
--increasing punishment than when it was done,
---reducing evidence required to convict from what was required at the time the act was committed.
87
BILLS OF ATTAINDER
Legislation that punishes individuals without trial is unconstitutional.
Punishment includes: traditional sanctions and exclusion from gov. benefit or employment.
applies to state+federal
88
FREEDOM OF SPEECH AND ASSEMBLY
The First Amendment prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of
assembly, or from establishing a religion or interfering with the free exercise of religion. These prohibitions are applicable to the states through the Fourteenth Amendment.
THRESHOLD QUESTION: WHETHER SPEECH IS INVOLVED
89
What is Speech?
--Words
--Symbols (like flags)
--Conduct that is:
(1)inherently expressive OR
(2)Intended to convey AND reasonably likely to be seen as conveying a message.
90
Incitement
UNPROTECTED SPEECH! Can be censored.
Intended to approach imminent lawless action AND reasonably likely to produce imminent lawless action.
91
True Threats
UNPROTECTED SPEECH!
The First Amendment also does not protect true threats, which are words that are intended to convey to someone a serious threat of
bodily harm.
To qualify as a true threat, the speaker must have had some SUBJECTIVE understanding that their threats were of a threatening nature, but a MENTAL STATE OF RECKLESSNESS IS SUFFICIENT (that is, the speaker is aware that others could regard the statements as threatening violence and delivers them anyway).
92
Statutes Can't be Viewpoint-Based
As a practical matter, statutes that attempt to punish
fighting words are usually vague or overbroad.
93
Obsenity
UNPROTECTED SPEECH (multi pronged and every box needs to be checked)
-Depiction of sexual conduct specified by law that taken as a whole:
(1) appeals to prurient interest in sex—>contemporary community standard (trying too much to turn you on in an unwholesome way)
(2) patently offensive under contemporary community standards (grossly offensive to local community), AND
(3) Lacks serious value (literary, artistic, political, or scientific) using a national standard, reasonable person standard (safety valve so more prulicanical commnuicals don’t just keep bringing cases against works)
Mere nudity, soft-core pornography, and “dirty words” are NOT obscene
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Note the two different standards used in the obscenity test:
-appeal to the prurient interest and offensiveness are judged by contemporary COMMUNITY standards (local or statewide, not necessarily national
standards),
-while value is judged on a NATIONAL REASONABLE PERSON basis.
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Private Possession of Obscene Material
even if something is OBSCENE, CAN have in-home possession
EXCEPTION: CHILD PORN (must be actual children)
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DEFAMATION - PUBLIC OFFICIAL OR PUBLIC FIGURE
can be subject to tort liability
First Amendment requires that must show elements of defamation PLUS:
-falsity
-actual malice (public officials or public figures) (some degree of fault)
—knowledge or falsity OR
—Reckless disregard for truth.
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Who are PUBLIC OFFICIALS?
(1) people holding or running for elective office (at any level) and
(2) public employees in positions of public importance (for ex: prosecutor, school principal, police office)
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Who are PUBLIC FIGURES?
people who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, OR (3) thrust themselves into particular public controversies to influence their resolution
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Matters of PUBLIC CONCERN
issues impt. to society or democracy. case-by-case basis (looking at content, form, and context of publication)
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DEFAMATION — PRIVATE FIGURE
Must show elements of defamation plus:
If PUBLIC concern:
—actual damages=negligence
—punitive/statutory damges=actual malice
If private concern
—actual malice NOT needed
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Commercial Speech
Truthful commercial speech protected speech
NOT protected if: (1) false, (2) misleading, or (3) about illegal products or services.
Any other regulation of commercial speech will be upheld ONLY IF:
(1) Serves a substantial gov. interest,
(2) Directly advances that interest, AND
(3) Is narrowly tailored to serve that interest (does not require least restrictive means, just needs to be reasonable fit)
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GENERAL SPEECH RESTRICTIONS
Speech and assembly regulations can be categorized as either CONTENT-BASED or CONTENT-NEUTRAL.
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Content-Based Regulations
A regulation is content-based if it restricts speech based on the SUBJECT MATTER or
VIEWPOINT of the speech.
STRICT SCRUTINY.
Presumptively unconstitutional (unless they fall within categories of unprotected speech, like obscenity).
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Content-Neutral Regulations
Content-neutral restrictions on speech (that is, restrictions that are BOTH subject matter-neutral and viewpoint-neutral) generally are subject to INTERMEDIATE SCRUTINY; that is, they must advance IMPORTANT interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests. (does not mean least restrictive here, just can't be overbroad. Does not have to be perfect fit but a close fit)
Oftentimes these are in the form of time, place, and manner restrictions (in other words, restrictions on the conduct related to speech)
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Traditional Public Forums and Designated Public Forums
Public property (that is, government-owned property) that has HISTORICALLY been open to speech-related activities (for example, streets, sidewalks, and public parks) is called a PUBLIC FORUM.
Public property that has NOT historically been open to speech-related activities, but which the government has thrown open for such activities ON A PERMANENT OR LIMITED BASIS, BY PRACTICE OR POLICY basis, by practice or policy (for example, a town hall open for use by social, civic, or recreation groups), is called a DESIGNATED PUBLIC FORUM.
Levels of Scrutiny:
--CONTENT-BASED, it will be subject to STRICT SCRUTINY.
--But if it’s CONTENT-NEUTRAL (again, both subject matter-neutral and viewpoint-neutral, usually going to the time, place, or manner of speech), it only needs to meet INTERMEDIATE SCRUTINY, which in this context means it must: Be narrowly tailored to serve an IMPORTANT government interest (however, it need not be the least restrictive means for accomplishing the interest) AND leave open ALTERNATIVE channels of communication.
Note that even if a regulation meets the time, place, and
manner requirements above, it could still be invalid if it is
overbroad, vague, or gives unfettered discretion
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SPEECH RESTRICTIONS ON GOVERNMENT PROPERTY.
The extent to which the government may regulate speech or expressive conduct on government property depends on whether the property involved is a:
--public forum,
--a designated public forum,
--a limited public forum, or
--a nonpublic forum.
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Limited Public Forums and Nonpublic Forums
Speech and assembly can be more broadly regulated in limited public forums and nonpublic forums.
LIMITED PUBLIC FORUMS are government forums NOT historically open generally for speech and assembly BUT opened for SPECIFIC speech activity, like a school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications.
NONPUBLIC FORUMS are government property NOT historically open generally for speech and assembly and NOT held open for specific speech activities, such as military bases or government workplaces. The government can regulate speech in such forums TO RESERVE THE FORUM FOR ITS INTENDED USE. In such locations, regulations are valid if they are:
---VIEWPOINT NEUTRAL and
REASONABLY related to a LEGITIMATE government purpose
-If the regulation is VIEWPOINT BASED, it will be subject to STRICT SCRUTINY.
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SPEECH RESTRICTIONS IN PUBLIC SCHOOLS
Generally, public primary and secondary schools (that is, elementary, middle, and high schools) and school-sponsored activities in those schools are NOT PUBLIC FORUMS. Therefore, speech (and association) can be REASONABLY REGULATED in them TO SERVE THE SCHOOL'S EDUCATIONAL MISSION.
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Personal Student Speech On Campus
A student’s own personal speech (that is, their expression of themselves as individuals) on campus cannot be censored absent evidence of substantial disruption. EXCEPTION: Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption.
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School Speech
Restrictions on speech related to the school’s teaching (for example, speech by school faculty and by students as part of curricular or extracurricular activities) must be REASONABLY RELATED to LEGITIMATE pedagogical concerns.
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Personal Student Speech Off Campus
When the student’s personal speech occurs off campus, it will be harder to censor. Schools will be limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly OUTWEIGH the speech interests of students as private citizens.
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Restraints on Speech Activities of Government Employees
Under the First Amendment, speech generally cannot be regulated or punished based on the CONTENT of the speech UNLESS the regulation or punishment is NECESSARY to achieve a COMPELLING government interest.
HOWEVER, special rules apply when the government seeks to punish a government employee for speech or speech-related activities.
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Unprotected Employee Speech
If a government employee’s speech WHILE AT WORK involves a matter of PRIVATE CONCERN, the employer can punish the employee if the speech was DISRUPTIVE of the work environment. A government employer may also punish a public employee’s speech whenever the speech is MADE ON THE JOB and pursuant to the EMPLOYEE'S OFFICIAL DUTIES, EVEN IF THE SPEECH TOUCHES ON A MATTER OF PUBLIC CONCERN. There is no First Amendment protection in either situation.
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Protected Employee Speech
If the speech is on a matter of PUBLIC CONCERN but is NOT MADE PURSUANT TO THE EMPLOYEE'S OFFICIAL DUTIES, the courts will use a BALANCING TEST. The courts must balance the VALUE of the speech against the GOVERNMENT'S INTEREST in the efficient operation of the workplace.
For speech on matters of PRIVATE concern OUTSIDE of the workplace, the test is unclear, but this speech appears protected absent a detrimental effect on the workplace.
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Government
Employees Participation in Political Campaigns
The federal government MAY prohibit FEDERAL EXECUTIVE BRANCH employees from taking an ACTIVE part in political campaigns.
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Government
Employees Bans on Receiving Honoraria
A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to VIOLATE the First Amendment when applied to “RANK AND FILE” employees. Such a rule deters speech within a broad category of expression by a massive number of potential speakers and so can be justified ONLY IF the government can show that the employees’ and their potential audiences’ rights are OUTWEIGHED by the necessary impact the speech would have on actual operation of the government.
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Government
Employees Patronage
A public employee may NOT be hired, fired, promoted, transferred, etc., based on party affiliation or political views except as to policy-making positions, where party affiliation and views are relevant.
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SPEECH IN PUBLIC EMPLOYMENT; Loyalty Oaths
The government can require employees to take loyalty oaths, as long as the oaths aren’t overbroad or vague.
a. Overbreadth
An oath can’t prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine.
b. Oaths
An oath requiring public employees to support the Constitution and to oppose the unlawful overthrow of the government is valid; but an oath requiring public employees to support the flag is invalid.
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PRIOR RESTRAINTS
Types: injunctions & licensing schemes
Disfavored but treated under standard free speech doctrine
—content based->strict scrutiny
---content-neutral>intermediate scrutiny
Content based prior restraints usually fail absent special societal harm.
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INVALID PRIOR RESTRAINTS
Prohibiting publication of The Pentagon Papers because it MIGHT have an effect on the Vietnam War.
Prohibiting grand jury witness from EVER disclosing testimony.
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VALID PRIOR RESTRAINTS examples
Prohibiting publishing of troop
movements IN TIMES OF WAR.
Enforcing CONTRACTUAL PREPUBLICATION REVIEW of CIA agent’s writings.
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Free Exercise Clause
Prohibits gov. from discriminating on basis of religious belief, status, or conduct.
—religious beliefs covered based on role in believer’s life.
—Courts can question sincerity, not truth.
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Law is discriminatory (violates the free exercise clause) if:
-Not neutral on its face (that is, the law expressly provides favored or disfavored treatment based on religious belief, conduct, or status), OR
-Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally or a religion in particular)
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Establishment Clause
prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the government to pursue a course of neutrality toward religion.
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Establishment Clause Elements
Neutrality Principle:
—gov. must remain neutral with respect to religion
—neither favor nor disfavor religion
Coercion prohibited:
—Can’t directly/indirectly coerce ppl to exercise/not exercise religion.
History and Tradition:
—must be interpreted by reference to historical practices and understandings
—can neutralize religious message, making non-neutral practice acceptable.
…..be on lookout for facts indicating that religious practices or displays at issue have been around for awhile that NEUTRALIZES the religion message…
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The Establishment Clause cases can be grouped into four categories:
(1) cases preferring one religious sect over others;
(2) a limited group of cases unconnected to financial aid or education;
(3) cases involving financial aid to religiously affiliated institutions; and
(4) cases concerning religious activities in public schools.
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