Constitutional Law (MBE) Flashcards
Judicial Power: Federal Courts Advisory Opinions
Federal courts CANNOT issue advisory opinions, which are decisions that lack an ACTUAL DISPUTE or any LEGALLY BINDING EFFECT.
Judicial Power: Establishing Ripeness
A plaintiff can establish ripeness by showing: (i) the issues are FIT for a judicial decision, and (ii) the plaintiff would suffer SUBSTANTIAL HARDSHIP in the absence of review.
Judicial Power: Mootness
A LIVE CONTROVERSY must exist at all stages of review or the case will be dismissed.
Judicial Power: Mootness Exceptions
A claim that is not considered to be moot in the following situations: (i) issues capable of repetition, (ii) where the defendant voluntarily stops the offending practice, but is free to resume, and (iii) class actions where the claim of at least one member is still viable.
Judicial Power: Standing
A person has standing where he has: (i) an injury in fact (which must be PARTICULARIZED and CONCRETE), (ii) causation, and (iii) redressability
Judicial Power: Standing - General Citizenship Standing
People have no standing merely as “citizens” or taxpayers, though a taxpayer challenging their own tax bill would.
Judicial Power: Standing - Tenth Amendment
A person MAY have standing to allege the federal action violate the 10th Amendment by interfering with powers reserved to the states if redressable
Judicial Power: Standing - Establishment Clause
People have standing to challenge congressional spending on First Amendment Establishment Clause
Judicial Power: Standing - Third Party Standing
Generally, there is no third-party standing, UNLESS: (i) it is DIFFICULT for the 3rd party to assert their own rights, and (ii) a close relationship exists between the claimant and the third party
Judicial Power: Standing - Organizations
An organization has standing to sue on behalf of its members if: (1) there is an injury in fact to the MEMBERS, (2) the member’s injury is related to the ORGANIZATION’S PURPOSE, and (3) individual member participation in the lawsuit is NOT REQUIRED (i.e., not seeking individual damages).
Judicial Power: Standing - Congressional Conferral of Standing
Congress can’t eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury. However, a federal statute may create new interests, injury to which may be sufficient for standing.
Judicial Power: Standing - Enforce Government Statutes
A plaintiff MAY have standing to enforce a federal statute if they are within the ZONE OF INTEREST Congress meant to protect.
Judicial Power: Sovereign Immunity
The 11th Amendment bars a private party’s suit against a state in federal and and state courts or agencies.
Judicial Power: Sovereign Immunity - Exceptions
Exceptions to the sovereign immunity doctrine include: (i) waiver, (ii) local government and entities, (iii) bankruptcy, (iv) state officials to enjoin or seek personal damages, and (v) congress abrogates.
Judicial Power: Abstention
A federal court will abstain from resolving a constitutional law claim when the disposition rests on an unsettled question of state law.
Judicial Power: Abstention - Pending State Proceedings
Federal courts will NOT ENJOIN pending state CRIMINAL proceedings, except in cases of proven harassment or prosecutions taken in bad faith.
Judicial Power: Political Question
Issues CONSTITUTIONALLY COMMITTED to another branch of government or INHERENTLY INCAPABLE of judicial resolution will not be decided by federal courts.
Judicial Power: Political Question - Examples
(1) Challenges based on the “Republican Form of Government” Clause of Article IV (2) challenges to congressional procedures for ratifying CONSTITUTIONAL AMENDMENTS, (3) President’s foreign policy, and (4) political gerrymandering
Judicial Power: Supreme Court - Original Jurisdiction
The SCOUTS has original jurisdiction in ALL CASES affecting ambassadors, public ministers, consuls, those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
Judicial Power: Supreme Court - Adequate and Independent State Grounds
The SCOTUS WILL NOT exercise jurisdiction if the state court judgment is based on adequate and independent state grounds.
Legislative Power: Congress Implied Powers
Congress can exercise powers NECESSARY AND PROPER to carry out any of its enumerated powers.
The Necessary and Proper Clause alone CANNOT support federal law, rather it MUST BE COUPLED with another federal power.
Legislative Power: Federal Police Power
Congress HAS NO GENERAL POLICE POWER, except over D.C., federal lands, military bases, and Indian reservations.
Legislative Power: Taxing and Spending Power
Congress has the power to tax and spend to provide for the general welfare FOR ANY PUBLIC PURPOSE.
Non-spending regulations CANNOT be supported by the general welfare clause.
Legislative Power: Spending Power Conditions
Congress can impose CONDITIONS on the grant of money, as long as: (1) they are CLEARLY STATED, (2) RELATE TO THE PURPOSE of the program, and (3) are NOT UNDULY COERCIVE.
Legislative Power: Commerce Power
Congress has the power to regulate all foreign and interstate commerce, as well as commerce within Indian tribes. Interstate commerce means the: (i) CHANNELS, (ii) INSTRUMENTALITIES, or (iii) local activities that have a SUBSTANTIAL EFECT on interstate commerce.
Legislative Power: Commerce Power - Intrastate Activity
The Court will uphold regulation of INTRASTATE commerce if it can think of a RATIONAL BASIS on which Congress could conclude that the activity IN THE AGGREGATE substantially affects interstate commerce.
Legislative Power: Commerce Power - 10th Amendment Limitation
Congress is precluded from regulation NONECONOMIC intrastate activity in areas TRADITIONALLY REGULATED BY STATE GOVERNMENTS
Legislative Power: Commerce Power - Prohibition of Private Discrimination
Congress may PROHIBIT PRIVATE discrimination in activities that may have a substantial effect on interstate commerce.
Legislative Power: War
Congress has the power to declare war, raise and support armies, and provide for and maintain a navy.
Legislative Power: War and Related Powers - Enemy Civilians and Soldiers
Congress can’t deny habeas corpus review to all aliens detained as enemy combatants without a meaningful substitute.
Legislative Power: Investigatory Power - Subpoena of Presidential Information
Congress can subpoena the President’s personal information, so long as it advances a LEGITIMATE LEGISLATIVE PURPOSE, but the Court will balance Congress’s interest in obtaining the information against the burdens on the President.
Legislative Power: Property Power
Congress can dispose and make rules for territories and other properties in the United States.
Legislative Power: Bankruptcy Power
Congress has a NONEXCLUSIVE power to establish uniform rules for bankruptcy
Legislative Power: Postal Power
Congress has an EXCLUSIVE power to classify and place reasonable restrictions on the use of mails, but MAY NOT deprive any citizen or group of citizens of the general mail “privilege”.
Legislative Power: Citizenship - Exclusion of Aliens
Aliens have NO RIGHT to enter the United States and can be refused entry because of their political beliefs. However, RESIDENT ALIENS must get NOTICE AND HEARING before they can be deported.
Legislative Power: Citizenship - Naturalization and Denaturalization
Congress has EXCLUSIVE power over naturalization and denaturalization, but CANNOT take away citizenship without that person’s consent.
Legislative Power: Admiralty Power
Congress has PLENARY and EXCLUSIVE power over admiralty, unless left to state jurisdiction.
Legislative Power: Delegation
Legislative power can generally be delegated to the executive or judicial branch as long as INTELLIGIBLE STANDARDS are set and the power is NOT UNIQUELY CONFINED to Congress
Separation of Powers: Bicameralism and Presentment
Laws without bicameralism and presentment are INVALID.
Separation of Powers: Line Item Vetos
Congress CANNOT delegate to the President the power of the line item veto (i.e., canceling some part of a bill while approving others).
Separation of Powers: Legislative Vetos
Congress CANNOT retain a legislative veto (i.e., where Congress gives itself authority to amend or repeal an existing law without undergoing bicameralism and presentment.
Separation of Powers: 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.
Executive Power: Domestic Powers
(1) Where express or implied authority from Congress, actions are likely VALID, (2) where silent from Congress, relevant history is considered, and (3) where express prohibition from Congress, the action is likely INVALID.
Executive Power: Appointment Powers by President
The President appoints ambassadors, justices of the Supreme Court, and other officers with advice and consent of the Senate.
Executive Power: Appointment Powers by Congress
Congress can vest appointment of INFERIOR OFFICERS to the President, the courts, or the heads of the departments, but NOT members of a body with administrative or enforcement powers.
Executive Power: Removal of Appointees (President v. Congress)
President - The President can remove high level, purely executive officers at will, without any interference by Congress (i.e. Cabinet members) or independent agency heads if a sole director with significant executive power (but Congress can provide statutory limitations on the President’s power to remove other executive appointees)
Congress - Congress can remove executive officers ONLY through IMPEACHMENT PURPOSES
Executive Power: Pardons
The President may grant pardons for all FEDERAL OFFENSES, and cannot be limited by Congress
Executive Power: Veto Power
Acts vetoed by the President may still become law if passed by 2/3 vote of EACH house.
Executive Power: Pocket Veto
The President has 10 days to exercise the veto power, or the Bill is automatically vetoed IF Congress is not in session (if in Session it automatically becomes law).
Executive Power: Power to Call War
The President HAS NO POWER to declare war (only Congress does), but the President can act military in hostilities against the United States
Executive Power: Foreign Relations
The President has paramount power to represent the United States in foreign relations
Executive Power: Treaty Power
The President has the power to enter into treaties with the CONSENT OF 2/3 OF THE SENATE.
Executive Power: Supreme Law
Treaties are the “supreme law of the land,” if they are self-executing, and any state laws that conflict are INVALID.
Executive Power: Treaty Power - Conflict with Federal Laws
LAST IN TIME prevails (i.e., latter law trumps earlier law).
Executive Power: Treaty Power - Conflict with Constitution
Treaties are INFERIOR to the Constitution and MAY NOT be inconsistent
Executive Power: Executive Agreements
Executive Agreements are signed by the President and the head of a foreign country and can be used for the same purpose as treaties. They DO NOT require the consent of the Senate.
Executive Power: Executive Agreements - Conflict with State Law
Executive Agreements PREVAIL OVER state laws.
Executive Power: Executive Agreements - Conflict with Federal Laws
Federal law PREVAILS OVER Executive Agreements.
Executive Power: Executive Privilege
The President has a privilege to keep certain presidential communications a secrete so he can receive candid advice and protect the national security, EXCEPT in CRIMINAL proceedings where need for such information is demonstrated.
Executive Power: Executive Immunity
The President has ABSOLUTE IMMUNITY from civil damages based on ANY ACTION taken while exercising official responsibilities, but not for acts alleged occurring before taking office.
Executive Power: Impeachment
The President, Vice President, and all civil officers of the United States are subject to impeachment on grounds of TREASON, BRIEBERY, AND HIGH CRIMES AND MISDEMEANORS.
A MAJORITY vote in the House is necessary, and a TWO-THIRDS vote in the Senate for conviction.
Judicial Power: Standing - Free-Speech and Overbreadth Claims
A person has standing to bring a free speech claim, even if that person’s own speech WOULD NOT be protected under the First Amendment. (This DOES NOT apply to commercial speech).
Legislative Power: Commerce Power - Intrastate Activity - Compulsion of Inactivity
The Commerce Clause gives Congress the power only to regulate existing commercial activity, it DOES NOT give Congress the power to COMPEL activity.
Federalism: Exclusive State Powers
Under the 10th Amendment, all powers not granted to the federal government or prohibited to the states are reserved to the states or the people.
Federalism: States’ Police Powers
States have GENERAL POLICE POWERS, meaning they can regulate the health, safety, and welfare of their people.
Federalism: Federal Taxation and Regulation of State Governments
Congress CAN subject state government activities to regulation or taxation IF the law applies to BOTH public and private sector (e.g., minimum wage laws).
The 10th Amendment does limit Congress’s power to regulate the states alone by requiring them to act in a particular way, also known as ANTI-COMMANDEERING PRINCIPLE.
Federalism: Federal Taxation and Regulation of State Governments - Exception
Under its 14th Amendment, Congress may restrict states from discriminating in violation of EQUAL PROTECTION or depriving rights protected by due process
Federalism: State Taxation/Regulation of Federal Government
A state MAY NOT DIRECTLY tax federal instrumentalities without Congressional consent, however, NONDISCRIMINATORY INDIRECT TAXES are permissible if they do not UNREASONABLY BURDEN the federal government or deal with federal functions.
Federalism: Supremacy Clause
A federal law (i.e., the Constitution, federal statutes, or regulations, treaties, or executive agreements) may supersede or preempt state law
Federalism: Supremacy Clause - Express Preemption
A federal law MAY expressly state that the states may not adopt laws concerning the subject matter of the federal legislation. These are NARROWLY construed.
Federalism: Supremacy Clause - Implied Preemption
If state law conflicts with federal law such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted.
Federalism: Supremacy Clause - Preemption Presumption
Courts will start with the presumption that the state police powers ARE NOT superseded UNLESS that was the clear and manifest purpose of Congress.
Federalism: Supremacy Clause - Interstate Compact Clause
This concerns agreements BETWEEN STATES. If the agreement increases the states’ power at the expense of federal power, congressional approval is required.
Article IV Privileges and Immunities
Prohibits discrimination by a state AGAINST NONRESIDENTS when the discrimination concerns either: (i) important COMMERCIAL ACTIVITIES, or (ii) FUNDAMENTAL RIGHTS; and only applies if the discrimination is INTENTIONALLY protectionist in nature.
Note, corporations and aliens ARE NOT protected by this clause (but are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment).
Article IV Privileges and Immunities - Important State Interest Required
If the state law burdens an important commercial activity or fundamental right, it will be invalid UNLESS the law is: (i) NECESSARY TO ACHIEVE AN IMPORTANT GOV’T PURPOSE and (ii) there are NO LESS RESTRICTIVE MEANS available.
Fourteenth Amendment - Privileges of National Citizenship
States MAY NOT deny their citizens the privileges and immunities of NATIONAL citizenship (corporations are not protected here).
Dormant Commerce Clause (State Regulation of Commerce in the Absence of Congressional Action)
If Congress has not enacted laws regarding the subject, a state may regulate local aspects of interstate commerce, so long as the state DOES NOT DISCRIMINATE or UNDULY BURDEN interstate commerce.
Dormant Commerce Clause: Discriminatory Regulations
A discriminatory state law MAY BE VALID if it is necessary to achieve an important, noneconomic state interest and there ARE NO REASONABLE NONDISCRIMINATORY ALTERNATIVES available. (Still, these are ALMOST ALWAYS INVALID.)
Dormant Commerce Clause: Nondiscriminatory Balancing Test
If a nondiscriminatory state law burdens interstate commerce, it will be VALID UNLESS the burden OUTWEIGHS the promotion of a legitimate local interest.
Dormant Commerce Clause: Exceptions
(1) Congressional Approval, (2) State acts as a “Market Participant”, and (3) government performing traditional government functions
21st Amendment: State Control Over Intoxicating Liquor
State governments have wide latitude of importation of liquor and the conditions under which it is sold or used, however, regulations that constitute only an economic preference may violate the Commerce Clause.
Power of States to Tax Interstate Commerce
Congress has complete power to authorize or forbid state taxation that affects interstate commerce.
Power of States to Tax Interstate Commerce: Discriminatory Taxes
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause
Power of States to Tax Interstate Commerce: Nondiscriminatory Taxes
A nondiscriminatory tax will be valid if: (i) the tax applies to an activity with a SUBSTANTIAL NEXUS to the taxing state (includes business AVAILING ITSELF), (ii) the tax is FAIRLY APPORTIONED, and (iii) the tax must be FAIRLY RELATED to the services provided by the state.
Use Taxes: In Buyer’s State
Use taxes imposed on goods purchased outside the state but used within it ARE VALID.
Use Taxes: Forcing Seller to Collect Use Tax
An interstate seller MAY be required to collect a use tax IF the seller has a SUBSTANTIAL NEXUS with the taxing state.
Taxes: Commodities in Course of Interstate Commerce
Commodities in interstate transit are ENTIRELY EXEMPT from state taxation.
Taxes: Tax on Instrumentalities Used to Transport Goods Interstate
The validity on taxes on instrumentalities of commerce depends on whether: (1) the instrumentality has acquired a “taxable situs” in the taxing state (i.e., received benefits), and (2) the value of the instrumentality has been PROPERTY APPORTIONED.
Taxes: Privilege, License, Franchise, or Occupational Taxes
Generally permitted, may be measured by a flat amount or proportional rate. The following must be met: (i) the activity taxed has a SUBSTANTIAL NEXUS to the taxing state, (ii) the tax must be FAIRLY APPORTIONED, (iii) the tax MUST NOT DISCRIMINATE against interstate commerce, and (iv) the tax must fairly relate to services provided by the state.
Taxes: Power of States to Tax Foreign Commerce
The Import-Export Clause and the Commerce Clause greatly limit the states’ power to tax foreign commerce.
Inter-Sovereign Litigation: Suits by United States Against a State
The united states may sue a state without its consent.
Inter-Sovereign Litigation: Suits by a State Against United States
Public policy forbids a state from suing the United States without its consent or congressional permission.
Inter-Sovereign Litigation: Federal Officer as Defendant - Limitation
A suit against a federal officer is deemed to be brought against the United States itself if the judgment sought would be satisfied out of the public treasury or would interfere with public administration, and thus barred by sovereign immunity.
Inter-Sovereign Litigation: Federal Officer as Defendant - Specific Relief
Specific relief against an officer AS AN INDIVIDUAL will be granted if the officer acted ultra vires
Inter-Sovereign Litigation: Suits by One State Against Another
One state may sue another state without the latter’s consent (SCOTUS jurisdiction).
Federalism: Supremacy Clause - Field Preemption
Where a valid federal law impliedly “occupies” an entire field, state or local laws are barred EVEN IF NONCONFLICTING.
Thirteenth Amendment
Prohibits slavery and involuntary servitude, but also allows Congress to prohibit racially discriminatory action by ANYONE (public or private).
Fourteenth Amendment
Prevents states from depriving anyone of life, liberty, or property, without due process and equal protection of law.
Fifteenth Amendment
Prevents both the federal and state governments from denying a citizen the right to vote on account of race or color.
Rights of National Citizenship
Congress has inherent power to protect rights of citizenship under the 14th Amendment
State Action Doctrine
Because the Constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved, which generally includes enacting laws or acts of government officials in their official capacity.
State Action Doctrine - Private Individuals
The state action can be found in actions of private individuals who: (1) perform exclusive public functions, or (2) have significant state involvement. Government subsidies to private institutions is NOT ENOUGH.
State Action Doctrine: Exclusive Public Functions
Activities that are so traditionally the exclusive prerogative of the state are state action NO MATTER WHO PERFORMS THEM.
State Action Doctrine: Significant State Involvement
State action exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is sufficient entwinement between the state and private party.
Levels of Scrutiny: Rational Basis
The law is upheld if it is RATIONALLY RELATED to a LEGITIMATE government purpose.
Burden is on the PERSON CHALLENGING the law to prove the law should not be upheld.
Levels of Scrutiny: Rational Basis - Classifications that are Not Suspect or Quasi-Suspect
The rational basis standard is used to review regulations involving classifications that are NOT suspect or quasi-suspect, such as AGE, DISABILITY, and POVERTY.
Levels of Scrutiny: Intermediate Scrutiny
The law is upheld if it SUBSTANTIALLY RELATED to an IMPORTANT government interest.
The burden of proof is on the government.
Levels of Scrutiny: Intermediate Scrutiny - Protected Class
Regulations involving QUASI-SUSPECT classifications, such as GENDER and LEGITIMACY.
Levels of Scrutiny: Strict Scrutiny
The law is upheld it is NECESSARY to achieve a COMPELLING government purpose.
The burden of proof is on the government.
Levels of Scrutiny: Strict Scrutiny - Protected Class
Regulations affecting FUNDAMENTAL RIGHTS (e.g., interstate travel, voting, and First Amendment rights).
Procedural Due Process
The Due Process Clause of the Fifth Amendment and Fourteenth Amendment 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 generally insufficient to state a procedural due process claim. Instead, there must be an INTENTIONAL or reckless government action.
Procedural Due Process: Loss of Liberty
A loss of liberty occurs if a person: (1) losses significant freedom of action, or (2) is denied a freedom provided by the Constitution or statute.
Procedural Due Process: Loss of Property
Property includes person, real, and government benefits which there is AN ENTITLEMENT (meaning a REASONABLE EXPECTATION of CONTINUED RECEIPT) under state or federal law.
Procedural Due Process: Requirements
Procedural due process requires: 1) notice, 2) an opportunity to be heard, and 3) a neutral decisionmaker.
Procedural Due Process: Hearing Balancing Test
The type and extent of the hearing are determined by a balancing test that weighs: the importance of the interest to the individual and the value of specific PROCEDURAL SAFEGUARDS against the GOVERNMENT INTEREST.
Procedural Due Process: Neutral Decisionmaker
The decisionmaker cannot have any ACTUAL BIAS or serious risk of bias.
Procedural Due Process: Waiver
Due process rights are presumably subject to a waiver if the waiver is VOLUNTARY and made KNOWINGLY.
Substantive Due Process Rights
Substantive due process guarantees that laws will be reasonably and not arbitrary, both with respect to rights enumerated in the Constitution and unenumerated.
Substantive Due Process: Applicable Standards
When a fundamental right is limited, the law or action is evaluated under the STRICT SCRUTINY standard, all other cases are a RATIONAL BASIS standard.
Substantive Due Process v. Equal Protection
Substantive due process usually deals with ALL persons liberty to engage in some activity.
Equal protection usually deals with a PERSON or CLASS OF PERSONS treated differently than others.
Substantive Due Process: Rights
1) Marriage,
2) Procreation,
3) Use of Contraceptives,
4) Rights of Parents,
5) Keeping Extended Family Together,
6) Abortion (but no strict scrutiny)
Substantive Due Process: Abortion - Pre-Viability Rule v. Post-Viability Rule
Pre-Viability - Before viability, a state can regulate abortion to protect the women’s health or the life of the fetus, but must not place an UNDUE BURDEN on the women’s right to obtain an abortion.
Post-Viability - Once the fetus is viable, the state can prohibit abortions unless an abortion is necessary to protect the woman’s health or safety.
Substantive Due Process: Collection and Distribution of Personal Data
The state may reasonably gather and distribute information about its citizens.
Substantive Due Process: Right to Travel
An individual has a fundamental right to: (1) travel from state to state, and (2) to be treated equally after moving into a new state.
Right to international travel is NOT a fundamental right.
Substantive Due Process: Right to Vote
The right to vote is a fundamental right, and restrictions on that right, other than on the basis of residence, age, and citizenship, are INVALID unless it passes STRICT SCRUTINY.
Substantive Due Process: Right to Vote - Residency Requirements
REASONABLE time periods (e.g., 30 days) are valid
Substantive Due Process: Right to Vote - Property to Ownership
Conditioning the right to vote or hold office on ownership of property is usually INVALID, unless for special purpose elections.
Substantive Due Process: Right to Vote - Poll Taxes
Poll taxes are UNCONSTITUTIONAL
Substantive Due Process: Right to Vote - Primary Elections
States can require early registration to vote in primaries, but states cannot prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.
Substantive Due Process: Dilution on Right to Vote - One Person, One Vote Principle
The One Person One Vote principle applies whenever any level of gov’t decides to select representatives to a governmental body by popular election from INDIVIDUAL DISTRICTS.
Substantive Due Process: Dilution on Right to Vote - One Person, One Vote Principle - State and Local Elections
For State and Local elections, the populations of voting districts must be SUBSTANTIALLY EQUAL, and any deviation must be related to promoting a legitimate state interest.
Substantive Due Process: Dilution on Right to Vote - One Person, One Vote Principle - Congressional Elections
States must use ALMOST EXACT mathematical equality when creating congressional districts within the state.
Substantive Due Process: Racial Gerrymandering
Race CANNOT be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny.
Unspecified Rights: Intimate Sexual Contact
That state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct.
Unspecified Rights: Right to Refuse Medical Treatment
The right of a medically competent adult to refuse medical treatment is a part of his liberty under the Fifth and Fourteenth Amendments
Unspecified Rights: Assisted Suicide
There is NO FUNDAMENTAL RIGHT to physician-assisted suicide.
Unspecified Rights: Compelled Vaccinations
State can compel vaccinations against contagious diseases.
Right to Bear Arms
The Second Amendment right to bear arms protects the right of individuals to keep handguns in their homes for self-defense. This is at least a intermediate scrutiny question, but not rational basis.
Fair Notice
Laws that regulate people or entities must give fair notice of conduct that is forbidden or required.
Equal Protection: Proving Discriminatory Classification for Strict or Intermediate Scrutiny
There must be INTENT on the part of the government to discriminate, shown by: (i) a law that is discriminatory ON ITS FACE, (ii) discriminatory APPLICATION of a facially neutral law, or (iii) facially neutral law with a DISPARATE IMPACT on a protected class.
Equal Protection: Suspect Classes
Race, national origin, and (at state and local levels) alienage.
Equal Protection: Race and National Origin Standards
Race and national origin are judged by a strict scrutiny standard.
Equal Protection: School Integration
If school systems and attendance zones are established in a RACIALLY NEUTRAL manner, there is NO VIOLATION. Thus, no violation if housing patterns result in racial imbalance in schools.
Equal Protection: Affirmative Action by Government
Government action that FAVORS racial minorities is subject to the same STRICT SCRUTINY standard as government action discriminating against racial or ethnic minorities
Equal Protection: Affirmative Action by Government - Remedying Past Discrimination
The government has a compelling interest in remedying past government discrimination, so long as it was PERSISTENT and READILY IDENTIFIABLE. A race-based plan CANNOT be used to remedy GENERAL past societal discrimination.
Equal Protection: Alienage Classifications - Federal
Federal alienage classifications are NOT subject to strict scrutiny. Such classifications are valid if they are NOT arbitrary and unreasonable.
Equal Protection: Alienage Classifications - State
Generally, state/local laws on alienage are SUSPECT classifications subject to STRICT SCRUTINY, UNLESS it involves PARTICIPATION in state government, then RATIONAL BASIS applies.
Equal Protection: Alienage Classifications - Undocumented Aliens
Undocumented aliens ARE NO a suspect classification, thus state laws regarding them are subject to a RATIONAL BASIS.
Equal Protection: Quasi-Suspect Classifications
Legitimacy and gender are quasi-suspect classifications and are viewed under INTERMEDIATE SCRUTINY, meaning they must be SUBSTANTIALLY RELATED to an IMPORTANT government purpose.
Equal Protection: Other Classifications (Non Suspect or Quasi-Suspect)
All other classifications are evaluated under the RATIONAL BASIS standard, including age, disability, and wealth.
Equal Protection: Other Classifications - Animus Reasoning Behind Law
If the government’s only interest in denying a benefit to or imposing a burden on a group of people is a dislike of them, it WILL NOT MEET RATIONAL BASIS REVIEW.
Taking Clause
The Fifth Amendment provides that private property may be taken ONLY IF: (i) for PUBLIC USE, and (ii) the government pays JUST COMPENSATION.
Taking Clause: Physical Takings
A taking will be found if there is: (i) a confiscation of a person’s property, or (ii) a permanent or regular physical occupation of a person’s property by the government.
Taking Clause: Temporary Occupations
Temporary occupations by the government MAY be a taking, depending on the following factors: degree of invasion, duration, government’s intention, foreseeability of the result, and interference with the use of property.
Taking Clause: Exceptions
(1) Development - Conditions on building may constitute a taking UNLESS: (i) the government can show there is an ESSENTIAL NEXUS between the condition and the proposed development, and (ii) the adverse impact of the proposed development is roughly PROPORTIONAL to the loss caused by the property owner from the forced transfer.
(2) Emergency - A taking is not likely to be found if its made pursuant to a public emergency (e.g., war).
Taking Clause: Regulatory Taking - Denial of All Economic Value
If a government regulation denies a landowner of ALL ECONOMICALLY VIABLE USE of their land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
Taking Clause: Regulatory Taking - Temporary Denials
Temporarily denying an owner of all economic use of property DOES NOT constitute a taking per se. The Court will carefully examine and weigh all relevant circumstances - planner’s good faith, reasonable expectations, length of delay - to determine whether “fairness and justice” requires just compensation.
Taking Clause: Regulatory Taking - Balancing Test
Generally, regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use. The Court will consider: (i) the GOVERNMENT INTEREST, (ii) the DIMINUTION IN VALUE to the owner, and (iii) whether the regulation SUBSTANTIALLY INTERFERES with the investment-backed expectations of the owner.
Taking Clause: “Public Use” Requirement
If the government’s action is RATIONALLY RELATED to a LEGIMITATE public purpose (i.e., rational basis), the public use requirement is satisfied.
Taking Clause: Just Compensation Requirement
Measured by the FAIR MARKET VALUE of the property taken AT THE TIME OF TAKING.
Taking Clause: Inverse Condemnation
When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation. If a taking is found, the government will be required to: (i) pay the property owner just compensation, or (ii) terminate the regulation and pay the owner for damages.
Taking Clause: Types of Regulatory Takings
1) Denial of all economic value of land, or 2) decreasing economic value (balancing test).
Contract Clause
The Contract Clause limits the ability of STATE and LOCAL governments (NOT FEDERAL) to enact laws that RETROACTIVELY impair contract rights.
Contract Impairment Rules (Private v. Public Contracts)
Private - Intermediate scrutiny is applied. Legislation that SUBSTANTIALLY IMPAIRS an existing private contract is invalid unless the legislation: (1) serves an important and legitimate public interest, and (2) is reasonably and narrowly tailored to promote that interest.
Public - Legislation that impairs a contract to which a state is a party is tested by the same test above, but receives a HEIGHTENED SCRUTINY.
Ex Post Facto Laws
Neither the state nor the federal government may pass an ex post facto law, which RETROACTIVELY alters CRIMINAL OFFENSES or PUNISHMENTS in a substantially prejudicial manner.
A statute retroactively alters a law in a substantially prejudicial manner if it: (i) makes criminal an act that was INNOCENT when done, (ii) imposes GREATER PUNISHMENT than when the act was done, or (iii) REDUCES THE EVIDENCE required to convict a person than when the act was committed.
Bills of Attainder
Legislative acts that inflict punishment on individuals without a prejudicial trial.
Retroactive Laws - Due Process
If a retroactive law does not violate Contracts, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the Due Process Clause, and if it doesn’t substantially burden a fundamental right, it only needs to be rationally related to a legitimate government interest.
Freedom of Speech and Assembly: Speech
Includes words, symbols, and EXPRESSIVE CONDUCT, meaning any kind of conduct that is either: (i) INHERENTLY EXPRESSIVE, or (ii) INTENDED to convey a message and REASONABLY LIKELY to be perceived as conveying a message.
Freedom of Speech and Assembly: Unprotected
Speech - Incitement
Speech can be censored as incitement if it is: (1) INTENDED to produce IMMINENT LAWLESS ACTION and (2) LIKELY to produce IMMINENT LAWLESS ACTION.
Freedom of Speech and Assembly: Fighting Words
Personally abusive words that are likely to INCITE IMMEDIATE PHYSICAL RETALIATION in an average person, BUT NOT merely annoying words, can be censored.
Freedom of Speech and Assembly: True Threats
Words that are INTENDED to convey to someone a SERIOUS THREAT OF BODILY HARM is not protected.
Freedom of Speech and Assembly: Fighting Words - Viewpoint Based Statutes
Fighting words statutes that are viewpoint based (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender) are NOT ALLOWED.
Freedom of Speech and Assembly: Obscentiy
Obscenity speech is NOT PROTECTED. Speech is obscene if it depicts sexual conduct specified by law that taken as a whole: (1) appeals to the PRURIENT INTEREST in sex, using a CONTEMPORARY COMMUNITY STANDARD, (2) is PATENTLY OFFENSIVE under CONTEMPORARY COMMUNITY STANDARDS, and (iii) LACKS SERIOUS literary, artistic, or political VALUE using NATIONAL, REASONABLE PERSON STANDARD.
Freedom of Speech and Assembly: Obscenity - Private Possession
Private possession of obscene material IN THE HOME cannot be punished. However, this protection does not extend outside the home.
Freedom of Speech and Assembly: Obscenity - Child Pornography Simulated Pictures
While the government may prohibit the sale or distribution of VISUAL depictions of sexual conduct involving minors, it CANT bar material that only appears to depict minors, but actually uses young-looking adults.
Freedom of Speech and Assembly: Obscenity - Land Use Regulations
A land use regulation MAY LIMIT the location or size of adult entertainment establishments if designed to REDUCE SECONDARY EFFECTS of such business, but cannot ban altogether .
Freedom of Speech and Assembly: Defamatory Speech - Public Figures
If the defamatory statement is about a PUBLIC OFFICIAL or PUBLIC FIGURE or involves a matter of PUBLIC CONCERN, the First Amendment requires the plaintiff to prove all the elements of defamation PLUS FALSITY and some degree of FAULT (or actual malice if public figure is suing) in order to recover.
Freedom of Speech and Assembly: Defamatory Speech - Public Figures Suing
If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is ACTUAL MALICE.
Freedom of Speech and Assembly: Defamatory Speech - Actual Malice
To show actual malice, the plaintiff must prove by clear and convincing evidence that the alleged defamatory statement was made with: (i) knowledge that it was false, or (2) reckless disregard as to its truth or falsity.
Freedom of Speech and Assembly: Defamatory Speech - Public Officials
Public officials include people: (1) holding or running for elective office (at any level), and (2) public employees in positions of public importance (e.g., prosecutor, school principal, police officer).
Freedom of Speech and Assembly: Defamatory Speech - Public Figures
Public figures are people who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, and (3) thrust themselves into particular public controversies to influence their resolution.
Freedom of Speech and Assembly: Defamatory Speech - Matters of Public Concern
Matters of public concern are issues important to society or democracy (case by case basis)
Freedom of Speech and Assembly: Defamatory Speech - Private Figure Suing on Matter of Public Concern
If the plaintiff is a PRIVATE FIGURE and the defamatory statement involves a matter of PUBLIC CONCERN, the plaintiff can only recover ACTUAL DAMAGES if the plaintiff only shows NEGLIGENCE.
To recover PUNITIVE DAMAGES or PRESUMED DAMAGES, they need to show ACTUAL MALICE.
Freedom of Speech and Assembly: Commercial Speech
Truthful commercial speech is protected
Commercial speech (e.g., advertisements, promotions of products/services, brand marketing), is NOT PROTECTED if it is: (1) false, (2) misleading, or (3) about illegal products or services.
Any other regulation of commercial speech will be upheld if it: (1) serves a SUBSTANTIAL GOVERNMENT INTEREST, (2) DIRECTLY ADVANCES that interest, and (3) is NARROWLY TAILORED to serve that interest.
Freedom of Speech and Assembly: Commercial Speech - Required Disclosures
The government may require commercial advertisers to make disclosures if they are NOT UNDULY BURDENSOME and they are REASONABLY RELATED to the state’s interest in preventing deception.
Freedom of Speech and Assembly: General Speech Restrictions - Content Based Regulations
A regulation is content based if it restricts speech based on the SUBJECT MATTER or VIEWPOINT of the speech.
Content based regulations are subject to STRICT SCRUTINY, and they are PRESUMPTIVELY UNCONSTITUTIONAL.
Freedom of Speech and Assembly: General Speech Restrictions - Content-Neutral Based Regulations
Content-neutral restrictions on speech are subject to INTERMEDIATE SCRUTINY and MUST NOT BURDEN SUBSTANTIALLY MORE THAN NECESSARY to further those important state interests.
Freedom of Speech and Assembly: Traditional Public Forums and Designated Public Forums
Public property that has historically been open to speech-related activities is called a PUBLIC FORUM (e.g., streets, sidewalks, and public parks).
Public property that has not historically been open to speech-related activities, but which the gov’t has thrown open for such activities on a permanent or limited basis, by practice or policy (e.g., town hall) is called a designated public forum.
Freedom of Speech and Assembly: Traditional Public Forums and Designated Public Forums - Levels of Scrutiny
If the regulation on a traditional or designated public forum is CONTENT-BASED, it will be subject to STRICT SCRUTINY.
But if CONTENT-NEUTRAL, it only needs to meet INTERMEDIATE SCRUTINY, which means it must: (i) be NARROWLY TAILORED to serve an important government interest, and (2) leave open ALTERNATIVE CHANNELS of communication.
Freedom of Speech and Assembly: Limited Public Forums and Nonpublic Forums
Limited public forums are gov’t forums not historically open generally for speech and assembly, but opened for specific speech activity (e.g., school gym).
Nonpublic forums are government property not historically open for speech and assembly and not held open for specific speech activities (e.g., military bases)/
Freedom of Speech and Assembly: Limited Public Forums and Nonpublic Forums - Scrutiny
Regulations of speech in forums to RESERVE THE FORUM for its INTENDED USE is valid if: (1) VIEWPOINT NEUTRAL, and (2) REASONABLY RELATED to a legitimate government purpose.
If VIEWPOINT BASED, it will be subject to STRICT SCRUTINY.
Freedom of Speech and Assembly: Speech Restrictions in Public Schools
Speech can be reasonably regulated in public schools to serve the school’s educational mission since they are not considered PUBLIC FORUMS
Freedom of Speech and Assembly: Speech Restrictions in Public Schools - Personal Student Speech on Campus
A student’s own personal speech ON CAMPUS cannot be censored absent evidence of SUBSTANTIAL DISRUPTION.
Freedom of Speech and Assembly: Speech Restrictions in Public Schools - Personal Student Speech Off Campus
Schools are limited to restricting speech off campus to prevent cheating, bullying, threats, and other speech.
Freedom of Speech and Assembly: Speech Restrictions in Public Schools - School Speech
Restrictions on speech related to the school’s teaching must be REASONABLY RELATED to LEGITAMATE PEDAGOGICAL CONCERNS.
Speech in Public Employment: Restraints on Speech Activities of Government Employees - 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 gov’t employer may punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s OFFICIAL DUTIES, even if it touches on a matter of PUBLIC CONCERN.
Speech in Public Employment: Restraints on Speech Activities of Government Employees - 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 court will balance the value of the speech against the government’s interest in the efficient operation of the workplace.
Speech in Public Employment: Restraints on Speech Activities of Government Employees - Participation in Political Campaigns
The FEDERAL government MAY prohibit federal executive branch employees from taking an active part in political campaigns.
Speech in Public Employment: Restraints on Speech Activities of Government Employees - Patronage
A public employee MAY NOT be hired, fired, promoted, transferred, etc., BASED ON PARTY AFFILIATION or political views except as to policymaking positions, where party affiliation and views are relevant.
Loyalty Oaths
The government can require employees to take loyalty oaths as long as the oaths aren’t overbroad or vague.
Disclosures of Associations
The government MAY NOT force disclosure of every organization membership or affiliation in exchange for a government employment or other benefit; it can only inquire into those activities that are relevant to the employment or benefit sought.
Void for Vagueness Doctrine
If a CRIMINAL law or regulation fails to give persons REASONABLE NOTICE of what is prohibited, it may violate the Due Process Clause
Overbroad Regulation Invalid
A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes SUBSTANTIALLY more speech than is necessary.
An overbroad regulation is FACIALLY INVALID, unless a court has limited construction of the regulation so as to remove the threat to constitutionality protected expression.
Prior Restraints on Speech
Court orders that prevent speech before it occurs, and generally NOT FAVORED and RARELY ALLOWED.
Prior Restraints on Speech - Procedural Safeguards
To be valid, a system for prior restraint must provide the following safeguards: (i) the standards must be NARROWLY DRAWN, REASONABE, and DEFINITE, (ii) the injunction must PROMPTLY be sought, (iii) there must be PROMPT and FINAL JUDICIAL DETERMINATION
Prior Restraints on Speech - Unfettered Discretion
A regulation cannot give officials BROAD DISCRETION over speech issues; there must be DEFINED STANDARDS for applying the law. If a statute gives licensing officials UNBRIDLED DISCRETION, it is VOID on its face.
Freedom of the Press: Publication of Truthful Information
The press has a right to publish truthful information regarding a matter of public concern, CONTENT BASED restrictions are subject to STRICT SCRUTINY.
Freedom of the Press: Access to Trials
The First Amendment guarantees the public and press a right to attend CRIMINAL (and probably civil) trials, but the right MAY BE OUTWEIGHED by an overriding interest stated in the trial judge’s findings.
Freedom of the Press: Requiring Press to Testify Before Grand Jury
Members of the press may be required to testify before grand juries
Freedom of the Press: Interviewing Prisoners
The First Amendment DOES NOT give journalists a right to interview specified prisoners of their choice or to inspect prison grounds.
Freedom of the Press: Business Regulation or Tax
The press and broadcasting companies can be subjected to a GENERAL business regulation or taxes, but CANNOT be targeted for SPECIAL REGULATIONS or taxes.
Government Speech Free Speech
Free Speech DOES NOT apply to government speech. Generally, government funding of speech will be upheld if RATIONALLY RELATED to a LEGITIMATE STATE INTEREST.
Compelling Private Speech
The freedom to speak includes the freedom NOT TO SPEAK, and thus the gov’t CANNOT require people to salute the flag or display messages with which they disagree.
Trademark Protection
Trademark protection is NOT government speech, but rather free speech, and thus content-based restrictions on trade marks are subject to strict scrutiny.
Freedom of Association
The government MAY NOT prohibit politically unpopular groups NOR unduly burden a person’s right to belong to such groups.
Electoral Process
The court uses a BALANCING TEST to determine whether a regulation of the electoral process is valid: if the restriction on First Amendment activity is SEVERE, it must be NARROWLY TAILORED to achieve a COMPELLING INTEREST.
Electoral Process: Limits on Contributions
A statute limiting election campaign contributions is subject to INTERMEDIATE SCRUTINY. Laws may limit the amount of money that a person, group, or corporation can contribute to a POLITICAL CANDIDATE, but NOT A BALLOT REFERENDUM.
Electoral Process: Aggregate Contributions Limit
The government cannot limit the AGGREGATE amount one person or entity contributes to political candidates during an election, even though it can limit the amount given to a single candidate.
Electoral Process: Limits on Expenditures
Laws MAY NOT limit the amount that a candidate spends on a political campaign.
Electoral Process: Regulations of Core Political Speech
Regulation of “core political speech” (e.g., electioneering, distributing campaign literature) rather than regulation of process surrounding an election, will be upheld if it satisfies STRICT SCRUTINY.
Free Exercise Clause
The Free Exercise Clause prohibits the government from directly discriminating against religious belief, status, or conduct. However, it DOES NOT prohibit the government from adopting GENERALLY APPLICABLE LAWS.
Free Exercise Clause: Sincerity of Religious Belief
When deciding whether a person holds a religious belief, the courts can question the SINCERITY of that person’s belief, but NOT THE TRUTHFULNESS.
Free Exercise Clause: Neutral Laws
If a law is NEUTRAL, meaning applied generally, it IS NOT subject to the Free Exercise Clause.
Free Exercise Clause: Religious Exemptions
Granting an exemption to accommodate religious exercise generally WOULD NOT violate the Establishment Clause.
Free Exercise Clause: Ministers Exception
Religious organizations MUST be granted an exemption from suits alleging employment discrimination by ministers against their religious organization. This extends to the head of the congregation and others who are in ANY POSITION considered MINISTERIAL by the congregation (e.g., religious school teacher).
Free Exercise Clause: Unemployment Compensation Cases
If a state’s unemployment regulation allows persons to refuse work for “good cause,” then the state can’t refuse to grant unemployment benefits to persons who quit their jobs for religious reasons.
Free Exercise Clause: Amish Education Exception
The Amish have been granted an exception from a law requiring compulsory school attendance until age 16 based on the Free Exercise Clause and the fundamental right to educate one’s children.
Establishment Clause
The Establishment Clause compels the government to pursue a course of neutrality toward religion, under the LEMON TEST, government action WILL VIOLATE the Establishment Clause UNLESS the action: (i) has a SECULAR PURPOSE, (ii) has a PRIMARY EFFECT that NEITHER ADVANCES NOR INHIBITS RELIGION, and (iii) does not produce EXCESSIVE GOVERNMENT ENTANGLEMENT.
Establishment Clause: Sect Preference
Government action that prefers one religious sect over another violates the Establishment Clause, at least if such favoritism is NOT NECESSARY to achieve a COMPELLING INTEREST.
Establishment Clause: Cases Unconnected to Financial Aid or Education
A law favoring or burdening religion will be invalid, BUT a law favoring or burdening a large segment of society that happens to include religious groups will be upheld.
Establishment Clause: Cases Involving Financial Benefits to Religious Institutions
The SCOTUS applies the Lemon Test with greater strictness when government financial aid is going to a religiously affiliated GRADE or HIGH SCHOOL than it does another type of religious institution.
Procedural Due Process: Mathews v. Eldridge Test
1) The importance of the individual interest, 2) the value of additional procedural safeguards, and 3) the government’s interest in administrative efficiency.
