Constitutional Law (MBE/MEE) Flashcards
Judicial Power: Scope
Limited to power to review cases and controversies
Eleventh Amendment: States
Prohibits states from being sued for money damages in federal court for violating state law, unless:
(1) State consents to the suit, or
* Federal government is permitted to sue states
(2) Congress chose to abrogate that sovereign immunity through an enumerated power
* Congressional intent to abrogate must be clear
* Must be exercising power under Civil War amendments, i.e., 13th, 14th, 15As
Eleventh Amendment: State Officials
- Bars suits in federal court against state officials for violating state law
- Can generally seek injunctive relief against state officers for violating federal law, but federal courts cannot enjoin state judges or law clerks
- Can seek money damages from a state officer by suing the state officer in her personal capacity. Damages from the state treasury are barred.
Compact Clause
- Compact clause requires states to obtain Congress’s consent for agreements between states that increases political power of compacting states at expense of federal government
- Otherwise, states may generally enter into agreements with each other (i.e., interestate compacts) without permission from the federal government
Supreme Court Original Jurisdiction
- “All cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party”
- Congress cannot expand or limit this jurisdiction
Supreme Court Original Jurisdiction: District Court Concurrent Jurisdiction
Congress has granted SCOTUS exclusive jurisdiction over controversies between two or more states, which occur when states seek redress for injuries directly caused by other states. Congress has denied SCOTUS exclusive jurisdiction over all other cases within its original jurisdiction by granting lower federal courts concurrent jurisdiction over:
* Cases involving foreign ambassadors, public ministers, or consuls
* Cases between the United States and a state and
* Cases between a state and citizens of another state or noncitizens.
Supreme Court Appellate Jurisdiction
Two types:
* By certiorari (discretionary): Only four justices must agree to grant cert (“rule of 4”)
* Direct appeal (mandatory)
Supreme Court Appellate Jurisdiction: AISG
A final state-court judgment resting upon adequate and independent state grounds is not reviewable by Supreme Court.
AISG doctrine applies if the case:
* (i) Is in U.S. Supreme Court;
* (ii) Arises through a writ of cert; and
* (iii) Has already been decided by a state court;
* (iv) Adequate: State law controls decision, regardless of how federal issue would be decided
* (iv) Independent: State court’s ruling does not depend on an interpretation of federal law
Note: Although final state-court judgment that rests on AISG may not be reviewed, Supreme Court may constitutionally review a state court decision to determine whether such grounds exist.
Standing: Requirements
P must establish:
* Injury in fact: Concrete and particularized; actual or imminent
* Causation: Injury caused by D’s violation of constitutional or other federal right
* Redressability: Relief requested must be likely to prevent or redress injury
* “Prudential standing”: P is a proper party to invoke judicial resolution of dispute
Standing: Taxpayer Status
Generally no standing to challenge government allocation of funds, but a taxpayer has standing to:
* Litigate how much is owed on her tax bill; and
* Challenge government expenditures as violating the Establishment Clause
Standing: Third-party standing
Generally no standing to bring lawsuit based on claims of third party, but exceptions include:
* Special relationship between P and 3P (e.g., doctor, school, parent, bartender),
* 3P unable to assert his own rights; or
* Risk that disallowing 3P standing will dilute 3P’s rights
Standing: Organizational Standing
Organization has standing to sue on its own behalf or on behalf of its members if:
* Its individual members would have standing to sue in their own right;
* Claim is related to purpose of organization; and
* Individual members are not necessary to adjudicate claim
Standing: Legislatative Standing
- Legislators lack standing to challenge laws they voted against
- The legislature may have institutional standing if claim has something to do with its institutional functions
Standing: Section 1983 Claims
- Provides a method to enforce substantive rights granted by Constitution and other federal laws
- Color of state law: P must show that the alleged deprivation was committed by a person acting “under color of state law” (identical to “state action”)
- Proper Ds: Individual government employees at any level of government, in their individual capacities, including municipalities and local governments
Timeliness: Ripiness
- P must have experienced a real injury (or imminent threat thereof)
- Action brought too soon is “unripe”
Example: If an ambiguous law has a long history of non-enfrocement, case challenging that law may not be “ripe”
Note: Doctrine of ripeness matters at each stage of review, not just when the complaint is filed.
Timeliness: Mootness
Must be a live controversy at each stage of review. A case is not moot if:
* Controvesy is “capable of repetition” but “evading review”;
* D voluntarily ceases its illegal/wrongful action upon commencement of litigation (unless D could not reasonably resume the action, i.e., by passing a law granting relief)
* Collateral legal consequences can be imposed based on challenged conviction
* Named P’s claim in a class action suit is resolved
Note: Doctrine of mootness matters at each stage of review, not just when the complaint is filed.
Mootness: Capable of Repitition Yet Evading Review
A case will not be dismissed as moot if:
* A person will be subjected to same action over and over again; and
* Action will not last long enough to work its way through the judicial system.
Justiciability: Advisory Opinions
- Advisory opinion states opinion of Supreme Court upon a legal question submitted by a legislature, government official, or another court
- No advisory opinions: An actual case or controversy must exist
Justiciability: Declaratory Judgments
- Declaratory judgments are a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court
- Not prohibited, but challenged action must pose “real and immediate danger” to a party’s interests
Justiciability: Political Questions
Political questions are not subject to judicial review when:
* (i) Constitution has assigned decision-making on this subject to a different branch of the government, or
* (ii) Matter is inherently not one that the judiciary can decide
Absention
A federal court may abstain from deciding a claim when strong state interests are at stake. There are four kinds of abstention:
* Pullman: Unsettled law
* Younger: Pending criminal case
* Burford: Complex state regulatory scheme
* Colorado River: Simultaneous similar state/federal cases
Commerce Clause: Interstate Commerce
The power to regulate:
(i) the channels of interstate commerce,
(ii) the instrumentalities of interstate commerce, and
(iii) any activity that substantially affects interstate commerce
Note: Congress cannot mandate that individuals not engaged in commercial activities engage in commerce.
Commerce Clause: Substantial Economic Effect
- Economic activity is presumed to have a substantial effect.
- Aggregation: Even if an instrastate activity has no direct economic imapct on interstate commerce, Congress can regulate as long as there is a rational basis for concluding the total incidence of the activity in the aggregate substantially affects interstate commerce
Commerce Clause: Noneconomic Activity
- Noneconomic activity cannot be aggregated
- To regulate intrastate, noneconomic activity that involves area of traditional state concern, noneconomic activity itself must have a substantial impact on interstate commerce
Taxing Clause: Taxing
- Tax by Congress will be upheld if it is (i) apportioned evenly among the states based on population and (ii) rationally related to revenue production
- Congress has plenary power to impose taxes to raise revenue (i.e., any public purpose) through General Welfare Clause
Taxing Clause: Spending
Congress has the power to spend for the general welfare (i.e., any public purpose), including conditional funding, but condition must:
* (i) be for the “general welfare,”
* (ii) be unambiguous,
* (iii) relate to federal interest in particular national projects or programs,
* (iv) not induce states to act unconstitutionally, and
* (v) not be coercive
Congressional Power: Noncitizens and Citizenship
- Noncitizens: Congress has plenary power over noncitizens (subject to Due Process Clause for a noncitizen within U.S.) (ex. Congress can refuse entry to country for reasons such as political beliefs)
- Naturalization: Congress has exclusive authority over naturalization, but may not revoke U.S. citizenship without consent unless citizenship was obtained in fraud or bad faith.
Congressional Power: Necessary and Proper Clause
- Congress has the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government
- Not an independent source of federal power
Congressional Power: 13th Amendment
- Power to adopt legislation rationally related to eliminating slavery and racial discrimination
- Only amendment that authorized Congress to regulate purely private conduct
Congressional Power: 14th Amendment
- Section 5: Permits Congress to pass legislation to enforce Equal Protection and Due Process rights (but not to expand those rights or create new ones)
- Must be “congruence and proportionality” between constitutional right defined by courts and means of enforcement. If enforcement is so broad it effectively expands the right, enforcement is unconstitutional under Section 5.
Congressional Power: 15th Amendment
- Prohibits both state and federal governments from denying any citizen the right to vote based on race, color, or previous condition of servitude
- Right to vote: Right to have vote meaningfully counted
- Congress cannot treat states differently and thereby impinge on their “equal sovereignty” unless different treatment is rationally justified by current circumstances
Presidential Powers: Pardon Power
- President can pardon for federal offenses at any time after commission of the offense
- Does not apply to state crimes or impeachment
Presidential Power: Veto Power
President has 10 days to act on proposed legislation and may:
* Sign bill: It becomes law;
* Veto bill: By sending it back with objections to the house in which it originated; Congress can override veto by 2/3 vote in each house
* Do nothing: If Congress in session, bill becomes law without president’s signature. If Congress adjourned, bill does not become law (pocket veto, cannot be overriden).
Note: President cannot exercise a line-item veto whereby he vetos some parts of legislation but not others.
Presidential Power: Appointment
- President appoints all “officers of the United States” with the advice and consent of the Senate
- Only federal employees who exercise significant authority must be appointed consistent with appointment clause
- Inferior officers: Can be appointed by department head, President, or court
- Congress: Cannot appoint officers
Presidential Power: Removal
- Generally accepted that president may remove any executive appointee without cause (and without Senate approval)
- Congress may pass a law that creates an agency and protects the head of that agency from being fired by the President (i.e., an independent agency), but Congress cannot create multiple layers of removal protection.
Presidential Power: Commander in Chief
- Congress: Only Congress may declare war and may limit the president’s military activities through exercise of its military appropriation power
- President: Can take military action without a declaration of war in the case of actual hostilities against the US
Presidential Power: Treaties
- President has exclusive power to negotiate treaties
- Treaty may only be ratified by two-thirds Senate approval
- Treaty cannot conflict with Constitution
- Treaty that is not self-executing is not treated as federal law under Supremacy Clause unless it has been implemented through legislation
Presidential Powers: Executive Agreements
- President has power to enter into executive agreements with foreign nations
- Senate approval not required
- Because agreements do not become law, not binding on successor presidents
Separation of Powers: Impoundment
- Congress may pass a statute and give the President discretion to withhold funds
- If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold (i.e., impound) the money
Separation of Powers: Legislative Veto
Congress cannot reserve for itself the right to veto an executive action through a legislative veto
Separation of Powers: Delegation of Legislative Power
- Nondelegation doctrine: Delegation of some of Congress’s authority to the executive branch is constitutional if Congress specifies an “intelligible principle” to guide the delegate
- Nondelegable powers: Impeachment power, power to declare war
Separation of Powers: Judicial Immunity
- Absolute immunity from civil liability for damages resulting from judicial acts in which judge had jurisdiction
- No immunity regarding nonjudicial activities (e.g., hiring and firing court employees)
Separation of Powers: Legislative Immunity
No civil or criminal liability for statements and conduct made in the regular course of the legislative process by members of Congress
* Immunity will not protect statements made outside of Congress (ex. republication of defamatory statement, even if that statement was originally made in the Senate)
Note: State legislators are also immune from civil liability for actions within sphere of legitimate legislative activities, but not for criminal liability
Congressional Power to Investigate
- Congress does not have express power to investigate, but Necessary and Proper Clause allows Congress rboad authority to conduct investigations incident to power to legislate
- While a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, witness is entitled to procedural due process rights, including presence of counsel
Separation of Powers: Executive Immunity
Civil: President is immune from civil liability for official acts, but not immune for acts done:
* In President’s private capacity; or
* Before becoming President
Criminal: President is not immune from compliance with a subpoena in federal or state criminal proceedings.
Separation of Powers: Executive Privilege
- Official duties: President has an executive privilege when the subpoena regards official duties, but privilege can be outweighed by a demonstrated need (e.g., ongoing criminal prosecution)
- Personal matters: When the subpoena involves personal matters, it is at the court’s discretion and subject to restrictions
Federal Immunity
- States lacks power to regulate federal government, unless permitted by Congress or not inconsistent with federal policy (ex. can’t make federal post office in state pay its employees state $15 minimum wage rather than federal minimum wage of $7.25)
- Federal government and its instrumentalities are immune from taxation, unless by generally applicable indirect taxes that do not unreasonably burden federal government (e.g., taxing income of federal employees)
Federal Immunity from Taxation: Affiliates
State can tax federal government’s affiliates, including persons or entities employed by or doing business with federal government, even if cost of tax is ultimately passed onto government. Affiliate must pay taxes unless:
* Congress granted affiliate immunity;
* Tax discriminates against federal government or affiliate; or
* Tax substantially interferes with affiliate’s ability to accomplish its federal purpose or duties
State Immunity
- Federal government has virtually unlimited power to regulate states as long as it is exercising one of its enumerated powers
- Anti-commandeering principle: Cannot “commandeer” state legislatures by commanding them to enact or enforce a federal regulatory program
Dormant Commerce Clause: General Rule
If Congress has not, the states can regulate interstate commerce so long as the regulation does not:
* (i) Discriminate against out-of-state commerce;
* (ii) Unduly burden interestate commerce; or
* (iii) Purposefully regulate wholly out-of-state activity
Discrimination Against Out-Of-State Commerce: Exceptions
- Necessary to an important state interest: Regulation may be upheld if: (i) an important local interest being served; and (ii) no other nondiscriminatory means are available to achieve that purpose
- Market-participant exception: State is acting as a market participant as a buyer/seller (not regulator)
- Traditional government function: State or local government entities are performing a traditional government function
- Congressionally permitted discrimination: Congress authorized state regulation of commerce
Note: Even if Congress permits conduct that would violate DCC, states must comply with other constitutional protections (e.g., equal protection clause)
Dormant Commerce Clause: Undue Burden on Interstate Commerce
Balancing test: purpose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives
State Taxation of Interstate Commerce
State can tax interstate commerce only if:
* Congress is silent;
* Tax does not discriminate against or unduly burden interstate commerce (no direct commercial advantage to local businesses)
* Substantial nexus between taxing state and property/activity to be taxed; and
* Fair apportionment of tax liability among the states
State Taxation of Foreign Commerce
In addition to meeting same requirements as tax on insterstate commerce, state tax on foreign commerce must not
* (i) create a substantial risk of international multiple taxation or
* (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues
State Taxation of Interstate Commerce: Ad Volorem Property Taxes
- States can tax movable commodities that are within borders on specific date, but cannot tax goods merely in transit between states
- May tax instrumentalities of commerce if instrumentality has a taxable situs or sufficient contacts with the taxing state
Federal Preemption: Express Preemption
Constitution makes federal power exclusive or Congress has enacted legislation explicitly prohibiting state regulation in same area. Even if state law is consistent with federal law, express preemption operates to preempt state law.
Note: Express federal preemption must be narrowly construed.
Federal Preemption: Implied Preemption
Implied preemption occurs when any of the following exist:
* (i) Field preemption: Congress intended for federal law to occupy the field
* (ii) Conflict preemption: State law directly conflicts with federal law (e.g., impossible to comply with both) or indirectly conflicts with fedreal law (e.g., creating obstacle to law’s purpose
Federal Preemption: Absence of Preemption
- If federal law does not preempt state law, state is free to enact legislation regarding same issue
- Federal law acts as a floor but not a ceiling for state law
Full Faith and Credit Clause
Out-of-state judgments must be given in-state effect if court rendering judgment had jurisdiction and was a final judgment on the merits
State Action: General Rule
- Constitution protects against wrongful conduct by government, not by private parties, except under 13A
- Identifying state action is a prerequisite to finding a Constitutional violation
State Action: Traditional Government Function
State action occurs when a private person carries on
activities traditionally performed exclusively by the state (e.g., running primary elections)
State Action: Significant State Involvement
- Entanglment: Sufficient mutual contacts such that government is entwined with the entity and (i) constitutional standards should apply to private actor; or (ii) a mutual benefit results (e.g., joint venture); or
- State creates a private entity by special law for furtherance of governmental objectives and retains permanent control of entity
Note: Merely granting a license or regulating a private party is not state action. State must act affirmatively to facilitate, encourage or authorize activity.
Procedural Due Process: General Rule
- Under 5A (federal) / 14A (states), Government must follow certain procedures before taking your life, liberty, or property
- Generally entitled to notice of government’s action, opportunity to be heard, neutral decisionmaker, right to appeal
Procedural Due Process: Life
Imposition of death penalty requires procedural due process
Procedural Due Process: Liberty
Significant governmental restraint on one’s physical freedom, fundamental rights, or freedom of choice or action
Note: Damage to reputation does not implicate a liberty interest.
Procedural Due Process: Property
Requires a legitimate claim of entitlement by virtue of statute, employment contract, or custom
Note: If someone can only be fired “for cause” then that person has a legitimate entitlement to continued employment
Procedural Due Process: Deprivation of Protected Interest
- A violation can only occur when there is an intentional government act (e.g., not just negligence)
- Notice and hearing are not required when there is an accidental taking away of life, liberty, or property
Procedural Due Process: Notice and Hearing Due
Determined by three factors:
* Private interest affected;
* Risk of erroneous deprivation and value of additional safegaurds; and
* Government’s interest, including cost of additional process
Procedural Due Process: Disclipinary vs. Academic Dismissal
- Disciplinary dismissal: Due process requires student recieve notice and opportunity to be heard
- Academic dismissal: Public college may do so without providing a meaningful opportunity to be heard
Procedural Due Process: Civil Forfeiture Actions
Personal property may be seized prior to providing notice and hearing when:
* (i) Seizure serves a significant government interest;
* (ii) Interest would be frustrated by advance notice of seizure; and
* (iii) Seizure is performed by government
Procedural Due Process: Court Access
- Court fees are waived for an indigent person if fees will deny a fundamental right (e.g., appeal)
- Counsel is appointed for indigent criminal defendants
Strict Scrutiny
- When a fundamental right or a suspect classification is involved, government must show that the the law was least restrictive means to achieve a compelling government interest
- Least restrictive: Law should be neither over-nor under-inclusive
- Compelling interest: Necessary or crucial
Note: Burden of proof is on the government, and government must offer actual reason for passing the law.
Rational Basis
If the government infringes upon a non-fundamental interest or right, the law must be rationally related to a legitimate state interest. Rational basis applies to classifications based on: taxation, zoning, lifestyle, age, wealth, poverty, sexuality, weight, etc.
Note: Burden of proof is on challenger, and government can offer any legitimate reason, not necessarily the actual reason for passing the law.
Intermediate Scrutiny
Government must show that the law is substantially related to an important government interest
Note: Burden of proof is on the government, and government must offer actual reason for passing the law.
Substantive Due Process: Fundamental Rights
All laws that trigger fundamental rights are subject to strict scrutiny. This includes:
* Travel
* Voting and ballot access
* Privacy
* Second Amendment
Substantive Due Process: Right to Travel
- Includes right to travel from state to state or to move to another state
- States may impose reasonable residency restrictions before new residents are eligible for benefits (typically 30-90 days not to exceed a year, except for in-state tuition and divorce)
- Once a person qualifies as a resident, she must be treated equally
Substantive Due Process: Right to Vote
- Fundamental right for every U.S. citizen who is at least 18
- Applies to all elections
- Poll taxes are unconstitutional
- Some restrictions are permissible (e.g., residency requirements, prohibition against felons voting, requiring photo ID)
Substantive Due Process: Right to Public Office and Ballet Access
No fundamental right to hold office through election or appoitnment
Substantive Due Process: Right to Privacy
Collection of several related rights that have to do with family and procreation:
* Marriage,
* Contraception,
* Intimate sexual behavior
* Parental rights,
* Family relations,
* Obscene material
* Right to refuse medical treatment, and
* Right to avoid disclosure of personal medical information
Substantive Due Process: Second Amendment
- Gaurantees an individual’s right to possess a firearm.
- Firearm regulations are only valid if they are supported by a history and tradition of firearm regulations of the sort being challenged.
Equal Protection Clause: Proving Discrimination
- To trigger strict or intermediate scrutiny, must demonstrate discriminatory intent on part of government.
- Can show law is: discriminatory on its face, discriminatory as applied, or has a discriminatory motive.
Note: Statistical evidence or discriminatory effects are usually insufficient unless results are so dramatic that the only explanation can be race.
Equal Protection Clause: Suspect Classifications
- Race, ethnicity and national origin
- Citizenship status
Equal Protection Clause: School Segregation
- Only de jure segregation (“segregation by law”) violates the Constitution
- De facto segregation (happens but is not required) is not unconstitutional
Equal Protection Clause: Affirmative Action
- Affirmative action programs that are intended to benefit racial or ethnic minorities are subject to strict scrutiny
- For governmental affirmative action program based on race to survive strict scrutiny, the relevant governmental entity must show more than societal discrimaintion and must itself be guilty of specific past discrimination against the group it is seeking to favor
Equal Protection Clause: Citizenship (Federal)
Because Congress has plenary powers over noncitizens, federal classification is likely valid unless it is arbitrary and unreasonable
Equal Protection Clause: Citizenship (State)
- State classification subject to strict scrutiny and will be struck down (e.g., laws prohibiting noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs)
- Political-Function Exception: State laws prohibiting non-citizen’s participation in government functions (e.g., voting, serving on jury, public school teacher, police officer) are subject to rational basis review. This is a huge exception.
- Note: Residency requirement of 6 months prior to voting in local primary election subject to strict scrutiny.
Equal Protection Clause: Quasi-Suspect Classifications
Classifications based on gender and legitimacy are considered “quasi-suspect” and trigger intermediate scrutiny
Equal Protection Clause: Gender
- Burden is on state to show that different treatment of genders is substantially related to an important government interest and that an “exceedingly persuasive justification” exists for the distinction.
- Affirmative action is permissible under intermediate scrutiny as remedy for past gender-based discrimination
- If separate facilities are offered, must be “substantially equivalent”
Equal Protection Clause: Legitimacy
- Legislation designed to punish nonmarital children will not be upheld
- States may not prohibit children of unwed parents from receiving welfare benefits or benefits upon death of parent
Equal Protection Clause: Sexual Orientation
- Laws that burden members of LGBTQ community get rational basis review “with teeth”
- Civil Rights Acts of 1964 proteects employees against discrimination based on sexual orientation or identity
Equal Protection Process: Gerrymandering
- When government establishes voting districts, must follow “one person, one vote”
- Partisan: Permitted
- Racial: Race may be a factor in drawing district lines but not the only or predominant factor, unless plan can survive strict scrutiny
Property Clause
- Article IV, section 3 property clause gives Congress complete power to dispose of and regulate federally owned land and territories.
- Clause includes power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands
Privileges & Immunities: Article IV Comity Clause
- Prohibits state discrimination against nonresident citizens (not corporations or noncitizens) with respect to fundamental rights or essential activities (e.g., employment, transferring property, access to courts)
- Exception: State has substantial justification for discrimination against out-of-state citizens
- No market-participant exception
Privileges and Immunities: Fourteenth Amendment
Protects citizens from infringment by the states upon the privileges or immunities of national citizenship (e.g., right to travel interestate, vote for national offices, enter public lands)
Takings Clause: General Rule
Government has the power to take private property for public purposes so long as it pays just compensation
* Private property: Real property, tangible personal property, intangible property
* Public purposes: Any conceivable public purpose, so long as need for land is rationally related
* Just Compensation: FMV at time of taking
Takings Clause: Types of Takings
- Seizure/physical taking of property
- Damage to or destruction of property
- Recharacterization of private property as public property
- Regulatory taking
- Exacting of promises from developer
Takings Clause: Per Se Takings
- Permanent physical occupation
- When the regulation results in a permanent total loss of the property’s economic value
Takings Clause: Regulatory Takings
- Government rule adversely affects a person’s property to such an extent that it rises to the level of a taking
- Analyze whether total taking (no economically viable use of property left) vs. partial taking (some economic use of land remains)
- Courts consider: gravity of economic impact; extent to which regulation interferes with owner’s investment-backed expectations; and nature or benefit of regulation
Takings Clause: Exaction of Promises from Developer
Local governments may exact promises from developer in exchange for construction permits. Does not constitute a taking if there is:
* Essential nexus between legitimate state interests and condition exposed; and
* Rough proportionality between burden on owner and impact on community
Prohibited Legislation: Bills of Attainder
- Legislative act that declares a person or group of persons guilty of some crime and punishes them without trial
- Applies only to criminal or penal measures, including bars on government employment
Prohibited Legislation: Ex Post Facto Laws
Law will be struck down as being ex post facto if the law:
* Criminalizes an act that was not a crime when committed;
* Authorizes imposition of more severe penalty after act was committed
* Deprives defendant of a defense that was available when crime was committed;
* Decreases prosecution’s burden of proof after crime was committed
Prohibited Legislation: Impairment of Contracts
- “Contracts Clause” prohibits states from passing any law impairing existing contracts between private parties unless there is an overriding need for it
- Only applies to state legislative acts, not federal government
Freedom of Religion: Establishment Clause
- When a government shows preference to one religion over another, or to religion over nonreligion, strict scrutiny applies
- Standard of Review: Consider country’s “historical practices and understanding” about role of religion
Note: Courts will forgo historical test and apply strict scrutiny when the law directly benefits or burdens a particular religion
Establishment Clause: Financial Aid to Religious Institutions
- Permissible if aid is secular in nature and used for secular purposes
- If money is distributed among secular and religious institutions, distribution must be neutral as to religion
Establishment Cause: Tax Exemptions, Deductions, Vouchers
- Tax exemptions: Invalid if only available to religious organizations
- Tax deductions: Deduction must be available to all parents
- Tax vouchers: Permitted to give parents school tuition vouchers if choice of whether to use vouchers for religious tuition lies with parents
Establishment Clause: Access to Public Facilities by Religious Groups
Religious and non-religious groups must be treated in the same way
Freedom of Religion: Free Exercise Clause
First Amendment Free Exercise Clause protects the freedom to believe and the freedom to act, so long as person has a genuine belief in that religion
Free Exercise Clause: Freedom to Believe
Freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law
Free Exercise Clause: Religious Conduct
- State laws that intentionally target religious conduct are subject to strict scrutiny
- Neutral laws of general applicability that have impact on religious conduct are subject to rational basis review
- RFRA: Neutral laws of general applicability are subject to strict scrutiny if they substantially burden free exercise of religion
Regulation of Speech: Expressive Conduct
A regulation of expressive conduct (i.e., symbolic speech) is upheld if:
* Regulation is within government’s power to enact;
* Furthers an important government interest;
* Interest is unrrelated to suppression of ideas; and
* Burden on speech is no greater than necessary
Regulation of Speech: Overbreadth and Vagueness
- Overbreadth: Statute that regulates more speech than necessary to protect a compelling government interest is “overbroad” and void
- Vagueness: statute may be void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited
Regulation of Speech: Prior Restraints
A law that prohibits speech before it occurs is generally presumed to be unconstitutional, unless:
* (i) there is a particular harm to be avoided; and
* (ii) certain procedural safeguards are provided to the speaker
Note: Gag orders are subject to prior restraint analysis and are rarely upheld.
Regulation of Speech: Unfettered Discretion
- Law that permits a governmental official to restrict speech must provide definite standards as to how to apply law.
- Law that gives officials unfettered discretion is void.
Regulation of Speech: Freedom Not to Speak
- First Amendment protects not only freedom of speech, but freedom not to speak
- Cannot be forced to fund political speech through your employment
Regulation of Speech: Government Speech
Government is entitled to say what it wants, subject to the Establishment Clause, and can even engage in viewpoint discrimination
Regulation of Speech: Government Employee Speech
- When government employee is speaking pursuant to official duties in scope of employee’s duties, First Amendment cannot protect employee if later disciplined by state
- Cannot be fired/hired based on political party or any act of free speech
Note: While right to free speech extends to public employees speaking as private citzens about matters of public concern, government can regulate speech if interest in efficient government function outweighs employee’s free speech-right.
Regulation of Speech: Campaign Related Speech
Campaign Contributions: Statutes limiting campaign contributions are subject to intermediate scrutiny; can be regulated as long as caps are not unreasonably low. Laws may limit contributions to individual candidates, but not to ballot measures.
Campaign Expenditures: Restrictions on expenditures communicating during election campaign regarding a candidate are subject to strict scrutiny; need only disclose source of funding
Regulation of Speech: Content-Based vs. Content-Neutral
- Content-based restriction: Law that prohibits speech because of subject matter discussed or idea expressed triggers strict scrutiny
- Content-neutral restriction: Law that restricts time, place, or manner of speech is subject to differing levels of scrutiny depending on forum
Regulation of Time, Place, Manner of Speech: Traditional vs. Designated Public Forums
- Traditional: Historically associated with expression
- Designated: Government has opened up for speech-related activities
Regulation of Time, Place, Manner of Speech: Public Forums
In either traditional or designated public forums, restrictions generally must be:
* Content-neutral as to subject matter and viewpoint;
* Be narrowly tailored to serve a substantial governmental interest; and
* Leave open ample alternative channels for communication of the information
Regulation of Time, Place, Manner of Speech: Injunctions and Public Forums
Constitutionality of injunction in public forum depends on whether injunction is content-neutral or content-based:
* Content-neutral: Whether it burdens no more speech than necessary to achieve important governmental interest
* Content-based: Must be necessary for government to achieve compelling government interest
Regulation of Time, Place, Manner of Speech: Nonpublic Forums
Government may regulate speech-related activities in nonpublic forums as long as regulation is:
* Viewpoint-neutral, and
* Reasonably related to a legitimate government interest
Note: No First Amendment right to speech on someone else’s private property.
Regulation of Content: Exceptions
The following are not subject to protection under the First Amendment:
* Obscenity and child pornography
* Incitement to villence
* Fighting words
* Defamation
* Commercial speech
Exception to First Amendment: Obscenity
Obscenity test: Average person, applying contemporary community standards, must find that the material as a whole:
* (i) Appeals to prurient interest (e.g., erotic) (community)
* (ii) Depicts sexual conduct in patently offensive way (community); and
* (iii) Lacks serious literary, artistic, political or scientific value (national)
Note: Material that appeals to prurient interest of minors may be regulated as to minors een if it would not be considered obscene to an adult audience.
Exception to First Amendment: Incitement to Violence
State may forbid speech that advocates use of force or illegal action if:
* (i) Speech intends to incite or produce imminent lawless action; and
* It is likely to incite or produce such action (i.e., reasonable person would engage in the activity based on the incitement)
Exception to First Amendment: Fighting Words
- May be punished for speech that is likely to incite an immediate breach of the peace or threatens violence
- Need more than annoying or offensive words
- Must be genuine likelihood of imminent violence from hostile listeners
- Cannot regulate or prohibit fighting words based on speaker’s viewpoint (i.e., viewpoint-based regulation)
Exception to First Amendment: Defamation
If P is public official or public figure, or defamatory statement involves matter of public concern, P must also prove fault and falsity of statement
* Public figure: P must prove D acted with actual malice
* Public concern: If P is private figure but defamatory statement involves public concern, P need only prove negligence with respect to falsity of statement
Exception to First Amendment: Commercial Speech
Requirements to restrict protected, otherwise lawful, commercial speech:
* Commercial speech must concern lawful activity and be neither false nor misleading;
* Governmental must have substantial interest that regulation directly advances;
* Regulation must be narrowly tailored to serve interest
First Amendment: Regulation of the Media
Media has no greater First Amendment rights than general public
Regulation of the Media: Attending Trials
Right to attend trials may be outweighed if judge finds an overriding interest that cannot be accommodated by less restrictive means
Regulation of the Media: Illegally Obtained Private Information
Media is permitted to publish if third party, unknown to the publisher, obtained information illegaly that involves matter of public concern
Regulation of the Media: Broadcasters
- Can be more closely regulated than print and other media
- Broadcasters can be fined for airing patently offensive speech, even if that speech does not qualify as obscene
Regulation of Association: General Rule
- Freedom of association generally protects right to form or participate in any group, gathering, club, or organization
- Infringement may be justified by compelling state interest
Regulation of Association: Public Employment
A person may only be punished or deprived of employment based on political association if that individual:
* (i) is an active member of a subversive organization;
* (ii) Has knowledge of organization’s illegal activity; and
* (iii) Has specific intent to further those illegal objectives
Note: Rule also applies to admission for bar membership, but state may deny bar membership to candidate who obstructs investigation by refusing to answer question about political affilliations.
Freedom of Association: Voting in Primary Elections
- State cannot require a local political party to select presidential electors in an open primary when national party prohibits nonparty members from voting
- State can require a semi-closed primary system even if party wants to permit anyone to vote
- State may not prohibit a political party from allowing independents to vote in its primary
Freedom of Association: Ballot Access to General Election
State may refuse to grant a political party’s candidate access to general-election ballot unless party demonstrates public support through voter signatures on a petition, voter registrations, or previous electoral success
Freedom of Association: Fusion Candidates
A state may prohibit a candidate who is nominated by more than one party from appearing on the general-election ballot as a candidate of multiple parties
Freedom of Association: Criminal Penalties
- Statute that criminally punishes mere membership in an association violates
1A and 14A. Membership may only be criminalized if: - (i) group is actively engaged in unlawful activity, or is engaging in advocacy that passes“clear and present danger” test; and
- (ii) defendant knows of and specifically intends to further group’s illegal activity
