Constitutional Law II Flashcards
what is the Jackson Framework?
A 3 part test/framework for determining the scope of Presidential Powers
Jackson Framework - 3 Part Test for Presidential Powers
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)
Is Const. Freedom of Press subordinate to Executive branch claim of necessity to maintain secrecy of info?
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
Political Question Doctrine
when political question, separation of powers dictates court not decide issue
Standing Doctrine
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.
Standing Doctrine: 3 Elements Required for Court to Hear Case
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.
Establishment Clause
can’t establish or restrict religion
Standing Doctrine: Ripeness & Mootness
Ripeness requires 1st element to be met. Mootness requires 3rd element to be met.
Free Speech: Overview
protected activities: speech, press, assembly, petition
Free Speech: Government Restraint
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
General Question for Constitutional Law Issues
1) was there an act by the government?
2) was that act consistent with the constitution?
questions to ask for determining consistency with the constitution
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?
Federal: Power to Act?
Commerce Taxing Spending War Treaty Immigation Necessary and Proper 13th Amendment Enabling 14th Amendment Enabling 15th Amendment Enabling
Federal: Separation of Powers
Specific provisions defining branch power (these are rare): Presentment Bicameralism Appointments Case of Controversy
Separation of Powers Principle
Federal: Limitations on Power
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 AmendmentState: Limitations on Power
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 ArmsPowers of Federal Government
- Limited Powers
- NO general police power
- legislation must be one of the enumerated powers in the Constitution (see Federal: Power to Act)
Federal: 13th Amendment Enabling Clause
Congress has power to enact laws necessary and proper to abolish the badges and incidents of slavery (applies to both state and private actions)
Federal: 14th Amendment Enabling Clause
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)
Federal: 15th Amendment Enabling Clause
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.
Federal: Separation of Powers - Broad Principles
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.
Limitations on Government Action: Applicable ONLY to the States
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.
Presidential Powers vis-a-vis Congress & Courts
Youngstown v Sawyer
“Inherent” Presidential Powers & “Executive Privilege”
NYTimes v US; US v Nixon
Presidential power over war & terrorism
Hamdan v Rumsfeld
Limits on Federal Judicial Power: standing, mootness, and ripeness
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)
Strict Scrutiny Test
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.
Rational Relationship (Rational Basis) Test
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.
Substantive Due Process Doctrine
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.
Procedural Due Process Doctrine
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)
Substantive vs Procedural Due Process
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.
Procedural Due Process Analysis
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.
Equal Protection Clause of 14th Amendment
applies only to states. 5th amendment due process clause has equal protection and applies to feds.
Equal protection doctrine Rule #1 of 5
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.
Equal protection doctrine Rule #2 of 5
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.
Equal Protection Doctrine Rule #3 of 5
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.
Equal Protection Doctrine Rule #4 of 5
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
Equal Protection Doctrine Rule #5 of 5
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.
Freedom of Speech - Summary (1st Amen. for Fed; 14th Amen. for States)
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
Freedom of Speech - Analytic Framework
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
Freedom of Speech - Prima Facie Case
3 elements:
1) state action
2) abridging freedom of
3) speech
Freedom of Speech - Was there speech?
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)
Freedom of Speech - Was freedom of speech abridged?
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)
Freedom of Speech - Justifications for Abridgment of Speech
(*) 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
Freedom of Speech - Justifications for Abridgement: Strict Scrutiny
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.
Freedom of Speech - Justifications for Abridgement: Advocacy of Unlawful Action
gov’t may regulate speech directed at inciting or producing imminent lawless action and that is likely to incite or produce such action
Freedom of Speech - Justifications for Abridgement: Fighting Words
gov’t may regulate fighting words, that is, speech that tends to incite an immediate breach of peace & directed at hearer who is present
Freedom of Speech - Justifications for Abridgement: True Threats
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
Freedom of Speech - Justifications for Abridgement: Obscenity
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
Freedom of Speech - Justifications for Abridgement: Child Pornography
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.
Unprotected Speech
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.
Freedom of Speech - Justifications for Abridgement: Tortious Speech
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
Freedom of Speech - Justifications for Abridgement: Commercial Speech
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
Freedom of Speech - Justifications for Abridgement: Time, Place, and Manner Regulations
state may regulate time, place, and manner of speech in some circumstances, although applicable rule depends on type of forum in which speech occurs
Freedom of Speech - Justifications for Abridgement: Time, Place, and Manner Regulations - FORUM
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.
Freedom of Speech - Justifications for Abridgement: Time, Place, and Manner Regulations - FORUM Rules
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:
What is the distinction between “commercial” and “non-commercial” conduct in the context of freedom of association?
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.
