Constitutional Law II

Question 1

what is the Jackson Framework?

Answer 1

A 3 part test/framework for determining the scope of Presidential Powers

Question 2

Jackson Framework - 3 Part Test for Presidential Powers

Answer 2

1) explicitly/implicitly authorized by Congress (Pres. power @ highest point)
2) “twilight zone” - Congress hasn’t said anything about it through indifference, paralysis, lack of knowledge, etc.
3) Congress prohibits it (Pres. power at its lowest point)

Question 3

Is Const. Freedom of Press subordinate to Executive branch claim of necessity to maintain secrecy of info?

Answer 3

SCOTUS ruled 1st Amend. protects right of press to publish. In order to exercise prior restraint on publication, gov’t must show suffic. evidence that publ. would cause “grave & irreparable” danger. (NYTimes v US).

PAST MATERIAL = OK to publish.
CURRENT MATERIAL (i.e. battle plans, ID of in tell. agents) = Might be blocked

Question 4

Political Question Doctrine

Answer 4

when political question, separation of powers dictates court not decide issue

Question 5

Standing Doctrine

Answer 5

P’s must demonstrate “Personal stake in outcome” and then 3 Elements required for court to hear case.

Once standing is established, then must address political question doctrine.

Then if NOT a political question, must address prudential standing doctrine.

Question 6

Standing Doctrine: 3 Elements Required for Court to Hear Case

Answer 6

1) Injury
ACTUAL or IMMINENT (Abstract injury or feared future injury are NOT enough)
AND
PARTICULARIZED (injury must be unique to person or community or group bringing case and not applicable to public or large group as a whole - e.g. LA v Lyons)
AND
2) Causation
“fairly traceable”
AND
3) Redressability
Remedy sought must fix the injury. If it doesn’t, then this element is NOT met.

Question 7

Establishment Clause

Answer 7

can’t establish or restrict religion

Question 8

Standing Doctrine: Ripeness & Mootness

Answer 8

Ripeness requires 1st element to be met. Mootness requires 3rd element to be met.

Question 9

Free Speech: Overview

Answer 9

protected activities: speech, press, assembly, petition

Question 10

Free Speech: Government Restraint

Answer 10

3 possibilities for restricting speech:
1) prior restraint (or prior censorship)
(i.e. licensing, court injunctions, etc. - Patterson and Masses v Patten)
2) Post hoc punishments
allow speech to occur & then clean up afterwards
3) Denial of Gov’t funding

Question 11

General Question for Constitutional Law Issues

Answer 11

1) was there an act by the government?

2) was that act consistent with the constitution?

Question 12

questions to ask for determining consistency with the constitution

Answer 12

Fed Government Action?

1) does Fed govt have power to take the action?
2) did correct branch of Fed govt exercise power in proper way?
3) does action violate any limitations on fed government action?

State Government Action?
1) does action violate any limitations on state gov’t action?

Question 13

Federal: Power to Act?

Answer 13

Commerce
Taxing
Spending
War
Treaty
Immigation
Necessary and Proper
13th Amendment Enabling
14th Amendment Enabling
15th Amendment Enabling

Question 14

Federal: Separation of Powers

Answer 14

Specific provisions defining branch power (these are rare):
Presentment
Bicameralism
Appointments
Case of Controversy

Separation of Powers Principle

Question 15

Federal: Limitations on Power

Answer 15

Due Process:
    substantive
    procedural
Equal Protection
Freedom of Speech
Freedom of Association
Freedom of Press
Establishment Clause
Free Exercise of Religion
Right to Bear Arms
10th Amendment

Question 16

State: Limitations on Power

Answer 16

Supremacy Clause
Dormant Commerce Clause
Contracts Clause
P&I (Art 4)
P&I (14th Amendment)
Due Process:
     substantive
     procedural
Equal Protection
Freedom of Speech
Freedom of Association
Freedom of Press
Establishment Clause
Free Exercise of Religion
Right to Bear Arms

Question 17

Powers of Federal Government

Answer 17

• Limited Powers
• NO general police power
• legislation must be one of the enumerated powers in the Constitution (see Federal: Power to Act)

Question 18

Federal: 13th Amendment Enabling Clause

Answer 18

Congress has power to enact laws necessary and proper to abolish the badges and incidents of slavery (applies to both state and private actions)

Question 19

Federal: 14th Amendment Enabling Clause

Answer 19

Congress has power to enact laws necessary and proper to enforce prohibitions on the states in the 14th Amendment, including in particular the prohibition on discrimination in the equal protectino clause. Includes power to remedy past discrimination. (applies to state actions only)

Question 20

Federal: 15th Amendment Enabling Clause

Answer 20

congress has power to enact laws necessary and proper to enforce 15th amendment’s prohibition on state denials of right to vote based on race. includes power to remedy past discrimination.

Question 21

Federal: Separation of Powers - Broad Principles

Answer 21

1) Each branch may exercise power only in manner prescribed by Constitution.
2) Apart of mechanical provisions in Constitution, Court has enunciated principle of separation of powers which is: “no branch may aggrandize itself or enroach on another branch”
Examples:
a) performing function of another branch.
b) exercising control or supervision over another branch.
c) undermining authority of another branch.

Question 22

Limitations on Government Action: Applicable ONLY to the States

Answer 22

1) Supremacy Clause - Fed law preempts state law in 3 situations:
a) express preemption
b) field preemption
c) conflict preemption
2) Dormant Commerce Clause - implicitly limits power of states to regulate interstate commerce.
2 Rules:
a) laws discriminate against interstate commerce valid only if advance a legitimate local purpose not adequately served by any reasonable nondiscriminatory alternative.
b) laws that do not discriminate against interstate commerce but do place a burden on interstate movement of goods/services are void if burden on commerce is clearly excessive in light of benefits to local community.
2 Exceptions:
a) does not apply to states when they are acting as a market participant rather than a regulator of transactions between others
b) may not apply to states when they are exercising spending power as opposed to general regulatory power.

Question 23

Presidential Powers vis-a-vis Congress & Courts

Answer 23

Youngstown v Sawyer

Question 24

“Inherent” Presidential Powers & “Executive Privilege”

Answer 24

NYTimes v US; US v Nixon

Question 25

Presidential power over war & terrorism

Answer 25

Hamdan v Rumsfeld

Question 26

Limits on Federal Judicial Power: standing, mootness, and ripeness

Answer 26

standing, ripeness, and “particularized injury” requirement; mootness and injuries “capable of repetition, yet evading review” (LA v Lyons; Roe v Wade; Hein v Freedom from Religion Foundation; Summers v Earth Island Institute; Arizona Christian School Tuition Organization v Winn)

Question 27

Strict Scrutiny Test

Answer 27

State action that deprives persons of a fundamental right is void unless narrowly drawn to serve a compelling state interest. Court will only consider state’s actual justification for its action.Court will examine whether challenged measure is narrowly drawn and actually advances state’s compelling interest & whether it is over or underinclusive. To pass strict scrutiny, measure must be least restrictive means of achieving the state’s goal.

Question 28

Rational Relationship (Rational Basis) Test

Answer 28

state action is void unless rationally related to a legitimate state interest. very low level of scrutiny. state can cite any plausible, legitimate reason, even if not actual reason for law. court will assume to be true any set of facts that legislature might reasonably have believed to be true, even if such facts based on rational speculation and not evidence. under-inclusiveness is not a problem because legislature entitled to attack a problem one step at a time. over-inclusiveness not a problem either.

Question 29

Substantive Due Process Doctrine

Answer 29

all legislative acts are subject to challenge, but unless a fundamental right is at stake, however, law will receive only rational relationship test and is virtually certain to pass. thus this doctrine is deserving of substantial attention only if fundamental right appears to have been infringed. if no fundamental right is involved, then spend only a brief time on rational relationship analysis.

Question 30

Procedural Due Process Doctrine

Answer 30

under 5th amendment due process clause (fed govt) and 14th amendment (state govt). govt may not deprive any person of life, liberty, or property without due process of law (generally some kind of notice and opportunity to be heard)

Question 31

Substantive vs Procedural Due Process

Answer 31

substantive claim examines justification underlying law. one who raises substantive challenge is complaining that law should be voided. procedural claim challenges decision of govt to apply law or policy to specific individual in such a way to deprive that person of life, liberty, or property without proper notice & an opportunity to be heard.

Question 32

Procedural Due Process Analysis

Answer 32

3 steps:

1) determine whether person has property or liberty interest within meaning of this clause. Property refers to legitimate claim of entitlement to specific benefits based on independent source such as state law or contract. No easy test for liberty interest - one definition is: “those privileges long recognized by common law as essential to orderly pursuit of happiness - i.e. reputation when linked to pecuniary interests, freedom from physical restraint, parent-child relationships, school discipline, deportation)
2) determine whether state deprive person of the interest. deprivation must be result of intentional or reckless state action. negligent conduct not enough.
3) determine whether deprivation was accompanied by due process. some kind of notice and opportunity to be heard must be afforded.

Question 33

Equal Protection Clause of 14th Amendment

Answer 33

applies only to states. 5th amendment due process clause has equal protection and applies to feds.

Question 34

Equal protection doctrine Rule #1 of 5

Answer 34

5 rules:
1) laws on face classify persons according to suspect classification are void unless narrowly drawn to serve a compelling state interest (strict scrutiny).  Suspect classifications criteria: whether a class is a discrete and insular minority that historically has been victim of discrimination, relatively powerless, and identified by immutable trait that forms the basis for stigmatization or stereotypical assumptions.  3 suspect classifications by SCOTUS: race, alienage, and national origin.  Fed. govt can discriminate on alienage as long as discrimination passes rational basis test since fed has plenary power over immigration.  

 Public Function Exception: states may regulate aliens without passing strict scrutiny under public function exception which allows states to exclude aliens from elective and important nonelective positions provided that exclusion of aliens is not substantially over or under inclusive.  Important nonelective positions include those that involve exercise of discretion over others with respect to basic govt services.

  Strict Scrutiny: operates the same as strict scrutiny under substantive due process.  compelling state interests include remedying past racial discrimination and promoting diversity in higher education.

Question 35

Equal protection doctrine Rule #2 of 5

Answer 35

2) Laws on face classify persons according to quasi-suspect classification are void unless substantially related to important state interest (mid-level or intermediate scrutiny)
Quasi-suspect classifications: gender and illegitimacy
Intermediate Scrutiny: operates like strict scrutiny, but court more deferential to legislature. interest need not be compelling, merely important. important interests do not include admin ease or giving effect to stereotypes about proper role of women or men. important interests do include remedying past discrimination. a law that uses gender as a proxy for some other characteristic is not substantially related to state’s interest. link between means and the ends need not be as strong as under strict scrutiny, meaning more tolerance of over and under inclusiveness.

Question 36

Equal Protection Doctrine Rule #3 of 5

Answer 36

3) laws on face are neutral but discriminate in impact with respect to a suspect or quasi-suspect class & are result of discriminatory motive are void.

type of motive req'd: need not be sole or predominant motive as long as substantial factor in causing challenged action.  motive must be distinguished from intent as latter term is used in tort or criminal law.  discriminatory motive must be reason law adopted; mere fact legislature aware of discriminatory impact is not enough.

 Proving Motive: motive may be inferred from circumstances.  sometimes impact along so disproportionate as to prove discriminatory motive.  court also consider history of challenged measure: what was said when adopted & whether represented change from prior procedural practice or substantive policy.

 Effect of Motive: when discr. motive shown, burden shifts to govt to demonstrate same result would have occurred without discriminatory motive.  If govt shows this, then only need to pass rational basis test.  If govt cannot show this then law will be voided.

Question 37

Equal Protection Doctrine Rule #4 of 5

Answer 37

4) legislative classifications that burden fundamental rights are void unless they pass strict scrutiny
Fundamental Rights: use same tests as under substantive due process (examples: right to vote, right of interstate migration, and privacy, but not education

Question 38

Equal Protection Doctrine Rule #5 of 5

Answer 38

5) laws that classify persons in any other way are void unless rationally related to legitimate state interest
Rational Basis Test: same low scrutiny applied under substantive due process when no fundamental right infringed.

Question 39

Freedom of Speech - Summary (1st Amen. for Fed; 14th Amen. for States)

Answer 39

gov’t action that abridges freedom of speech is void unless it passes strict scrutiny or is otherwise justified. even where abridgement is justified, it is void if improper in form

Question 40

Freedom of Speech - Analytic Framework

Answer 40

3 steps:

1) determine whether gov’t abridged free speech (determine whether prima facie case established)
2) if so, determine whether abridgement is justified, either because it passes strict scrutiny or on some other ground
3) whether or not abridgement is justified, also determine whether improper in form

Question 41

Freedom of Speech - Prima Facie Case

Answer 41

3 elements:

1) state action
2) abridging freedom of
3) speech

Question 42

Freedom of Speech - Was there speech?

Answer 42

speech is activity intended to convey particular message where likelihood is great that message will be understood. Ex: verbal comm; draft card burning; flag burning; campaign contributions)

Question 43

Freedom of Speech - Was freedom of speech abridged?

Answer 43

FoS includes right to speak and right not to speak. Thus abridgement exists where state burdens or penalizes exercise of free speech or where it compels a person to speak, as where it requires saluting flag. denial of benefit to person on basis of persons’ speech also is abridgement under unconstitutional conditions doctrine. Refusal to subsidize speech is not abridgement (Rust v Sullivan)

Question 44

Freedom of Speech - Justifications for Abridgment of Speech

Answer 44

(*) exception applies to these forms of unprotected speech…

1) strict scrutiny
2) advocacy of unlawful action ()
3) fighting words ()
4) true threats ()
5) obscenity ()
6) child pornography (*)
7) tortious speech
8) commercial speech
9) time, place, and manner regulations
10) expressive conduct
11) government speech
12) government employee speech
13) school speech

Question 45

Freedom of Speech - Justifications for Abridgement: Strict Scrutiny

Answer 45

1) strict scrutiny - abridgements passing strict scrutiny will be upheld. Content based abridgements must pass strict scrutiny (generally). Content based abridgments NOT subject to strict scrutiny if speech falls into one of categories of speech: advocacy of unlawful action; fighting words; true threats; obscenity; child pornography. Content neutral abridgment, then generally analyzed either as a time, place, and manner restriction or as a restriction on expressive conduct.

Question 46

Freedom of Speech - Justifications for Abridgement: Advocacy of Unlawful Action

Answer 46

gov’t may regulate speech directed at inciting or producing imminent lawless action and that is likely to incite or produce such action

Question 47

Freedom of Speech - Justifications for Abridgement: Fighting Words

Answer 47

gov’t may regulate fighting words, that is, speech that tends to incite an immediate breach of peace & directed at hearer who is present

Question 48

Freedom of Speech - Justifications for Abridgement: True Threats

Answer 48

gov’t may regulate speech where speaker intends to communicate serious expression of intent to commit act of unlawful violence to particular individual or group of individuals

Question 49

Freedom of Speech - Justifications for Abridgement: Obscenity

Answer 49

government may regulate obscene speech. speech is obscene if it satisfies Miller test which has 3 elements:

1) average person applying contemporary community standards would find that work taken as a whole appeals to prurient interest in sex;
2) work depicts/describes in a patently offensive way sexual conduct specifically identified as obscene by state law; and
3) work taken as a whole, lacks serious literary, artistic, political, or scientific value, as measured by a national standard.
* Note: while state may prohibit creation of obscene material, it may not punish possession of obscene material in one’s home

Question 50

Freedom of Speech - Justifications for Abridgement: Child Pornography

Answer 50

state may regulate child pronography, which SCOTUS has not defined. Appears that sexually explicit material depicting minors would constitute CP. Material depicting persons who are not minors, even if appear to be, has been held not to fall in the unprotected category of CP. State may prohibit possession of CP in home. May also prohibit offers to give/receive CP.

Question 51

Unprotected Speech

Answer 51

Categories: advocacy of unlawful action; fighting words; true threats; obscenity; child pornography. Unprotected speech can be regulated without any other justification other than that speech falls in category. Content based regulations of under RAV only some (not all) speech in category of unprotected speech are subject to strict scrutiny unless criterion for determining which portion of unprotected speech will regulated is based on characteristic of speech that justifies treating it as unprotected. for example: if state bans only some fighting words, it must ban those words that are more likely to cause a fight or else its ban must pass strict scrutiny.

Question 52

Freedom of Speech - Justifications for Abridgement: Tortious Speech

Answer 52

may be regulated subjected to certain 1st Amen. restrictions. Illustrative rules in 2 areas:

1) defamation - not liable for defamatory speech regarding public official or public figure unless speaker spoke with actual malice, that is, knowledge that speech was false or reckless didsregard for truthfulness. where subject of speech is not public figure, protection for defamatory speech is weaker. States may establish standard for liability as long as they do not impose strict liability. court has provided limited protection for false speech that dmgs reputation in order not to chill truthful speech.
2) invasion of privacy-newspaper could not be liable for publishing info that invaded privacy of individual where info was truthful, lawfully obtained, and matter of public significant, unless imposition of liability necessary to further state interest of the highest order. Court provides substantial protection for speech that invades privacy where truthful, lawfully obtained, and of public significance

Question 53

Freedom of Speech - Justifications for Abridgement: Commercial Speech

Answer 53

speech that proposes commercial transaction (inclusion of some add’l noncommercial material in what is essentially commercial speech does not necessarily convert speech to ordinary speech)

state may prohibit speech that is misleading or coercive or that proposes an unlawful transaction

state may regulate other commercial speech if regulation directly advances substantial state interest and is not more extensive than necessary

Question 54

Freedom of Speech - Justifications for Abridgement: Time, Place, and Manner Regulations

Answer 54

state may regulate time, place, and manner of speech in some circumstances, although applicable rule depends on type of forum in which speech occurs

Question 55

Freedom of Speech - Justifications for Abridgement: Time, Place, and Manner Regulations - FORUM

Answer 55

Types of Forum:

a) traditional public forum: public property traditionally open to speech (e.g. streets, sidewalks, parks)
b) designated public forum: public property intentionally opened for speech (i.e. university auditorium)
c) limited public forum: designated public forum that is open only to certain types of speech
d) nonpublic forum: all other public property
e) private property

note: “property” is not limited to real estate. can refer to any means of communication. such as newsletter or collection of student organizations.

Question 56

Freedom of Speech - Justifications for Abridgement: Time, Place, and Manner Regulations - FORUM Rules

Answer 56

a) where speech occurs in trad’l public forum in designated public forum, or on private property, state may impose content neutral regulation of time, place, and manner of speech provided that regulation is narrowly drawn to serve significant gov’t interest and leaves open ample alt. channels of communication.

 Level of Scrutiny: weaker than strict scrutiny.  to pass: regulation need not be least restrictive means to further states' interest.

 Identifying Content Based Regulations:

Question 57

What is the distinction between “commercial” and “non-commercial” conduct in the context of freedom of association?

Answer 57

if the association is “non-commercial” that is when it will enjoy
full First Amendment protection to control its own membership, to the
extent membership will affect its ability to express its views and to
associate for that purpose.

Purely “commercial” associations probably have little First Amendment
protection as to who they accept as a member, employee, customer, etc,
since the purpose of a commercial association is presumably to make
money, not to express views or engage in speech, religious practice,
etc.

I would add here:

Anyone (person or corporation) does have a limited freedom of
“commercial speech” (defined as speech proposing or advertising a
commercial sale or transaction). See the Florida Bar v Went For It
case for the applicable standard of protection for “commercial
speech.” That is quite different from the freedom of association
that a commercial business might claim.

And even purely commercial entities, like for-profit corporations,
have full First Amendment rights to engage in non-commercial speech,
such as the New York Times Co. publishing news articles.