federal constitutional law

Question 1

individual rights

Answer 1

1. religion
2. equal protection
3. due process
4. speech

and lots of other little ones too :)

Question 2

equal protection

Answer 2

• when a statute (govt) treats people differently from other people.
• Theme is PEOPLE, once we know statute refers to people, see who people are:
• no per se violation if people are being treated differently– dependant on scrutiny

VVVVVVVVV
Equal protection principles apply to the federal government through the Fifth Amendment due process clause.

Privileges and Immunities of National Citizenship under the 14th Amendment—means nothing today (so it is never the correct answer on the MBE)
* NOTE: privileges and immunities of state citizenship clause in article IV (comity clause) has a narrow but important meaning. it prohibits serious discrimination against out-of-state individual in allowing access to the private job market–prohibits requiring those who work in the state to live in the state

two due process clauses
* 5th Amendment applies to the federal government.
* 14th Amendment applies to states and localities
* the equal protection clause is a constitutional safeguard that individuals or groups can use to challenge laws that treat similarly situated people differently (i.e., discriminate).

14th amendment equal protection clause
* Applies to localities and states
* Note 6: Though no Equal Protection Clause guarantee technically applies to the federal government, equal protection concepts are applied to the federal government via the Due Process Clause of the 5th Amendment. Therefore, states and localities have both equal protection and due process; for the federal government, equal protection and due process are called 5th Amendment Due Process.

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Standards of Review—Same for Due Process and Equal Protection

Strict scrutiny, i.e., is the law necessary for a compelling interest?

Intermediate scrutiny, i.e., is the law substantially related to an
important government interest?

Rational basis, i.e., is the law rationally to a legitimate government interest?
* Rational basis test is generally easily passed. However, recent Supreme Court cases have made exceptions in the field of sexual orientation.
* lawrence v. Texas – criminalization of homosexual intercourse did not pass rational basis test.
* United State v. Windsor – Court applied rational basis “with teeth” and struck down the federal Defense of Marriage Act, because it was not a rational plan of the federal government.
* Obergefell v. Hodges – Court held that marriage is a fundamental right and required states to recognize same-sex marriages.
* Laws against sexual orientation might be struck down as irrational because they are not supported by reasons other than mere prejudice.

Question 3

equal protection: level of scrutiny if the people are: race, ethnicity, alienage, national origin

Answer 3

this is NOT about citizenship!

strict scrutiny= govt burden to prove law is necessary to achieve COMPELLING interest

laws that disadvantage minorities will be struck down.
* Discriminatory purpose is required: A law is a racial classification only if the plaintiffs show it has a discriminatory purpose (not enough to show a disproportionate impact).
* Discriminatory purpose: May be explicit on the face of the statute or may be proved by a history of discriminatory application, or by extrinsic evidence about the purposes of those who passed the law.
* School desegregation: De jure (by law) segregation is unconstitutional. De facto segregation is not (usually by residential housing patterns).
* states constitutionally obligated to eliminate segregation in all public schools, but racial segregation is allowed in private schools that do not have significant government interest

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Affirmative action
* It is a racial classification; an effort to benefit a racial or ethnic minority.
* Triggers strict scrutiny and requires a compelling interest
* Specific past discrimination: Affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action.
* General societal discrimination does not justify affirmative action.
* Affirmative action is allowed in the context of preferential admissions to colleges and universities.
* Preferential admissions are allowed if necessary to achieve a diverse student body and diversity is essential to the education.
* Must be a strong showing that racial preferences are essential to achieving a diverse class.
* Racial preferences must be “holistic”(can be built into an evaluation if every student is evaluated individually in a holistic way) and flexible.
* Quotas are not allowed.
* Separate admissions tracks or procedures for minority applicants are not allowed.
* Preferential admissions not allowed for secondary schools (though schools may be located and attendance zones created to maximize diversity).

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Citizenship status
* Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest, but two important exceptions to strict scrutiny for citizenship status apply:
* Federal classifications based on U.S. citizenship do not trigger strict scrutiny.
* Federal classifications are valid unless arbitrary and unreasonable.

NOTE:
* Congress has plenary (i.e., exclusive) authority over immigration and naturalization, so federal laws based on U.S. citizenship are presumptively constitutional.
* To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.
* BUT IF A STATE DISCRIMINATES AGAINST NON CITIZENS, USE STRICT SCRUTINY
* Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship.
* But the Fourteenth Amendment limits this power by prohibiting Congress from revoking the citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.

State and local participation in government functions
* States and localities may require U.S. citizenship for participation in government functions, including voting, serving on a jury, and working in any kind of government law enforcement position (including probation and parole officers), or as a public school teacher.

Rule: States and localities cannot require U.S. citizenship for access to private employment or for government benefits.

custody to one’s children has been held to be fundamental right

Question 4

equal protection: level of scrutiny if the people are: gender, illegitimacy

Answer 4

intermediate scrutiny= govt burden to prove law SUBSTANTIALLY related to IMPORTANT interest

Gender classifications are almost always invalid (e.g., Oklahoma had a law permitting women to legally drink alcohol at a younger age than men).

Permissible examples of gender classifications:
* Statutory rape can be gender-specific (historically); and
* The draft.

Legitimacy (i.e., something depends on whether parents were married at the time of one’s birth) laws are almost always invalid, especially if punitive in nature.

Question 5

equal protection: level of scrutiny if people are: everyone else (non-suspect classifications, age and wealth)

Answer 5

rational basis= plaintiff has burden to show law NOT RATIONALLY related to LEGITIMATE interest

Age discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under the Equal Protection Clause.

Wealth is not a suspect or quasi-suspect classification, but the government has to waive filing fees for indigents when charging the fees would deny a fundamental right.
* Examples include: divorce (because marriage is a fundamenta lright); transcript for appeal of a criminal conviction (because appellate review is a fundamental right); transcript for appeal of the termination of parental rights.
* State laws that discriminate against persons experiencing homelessness and do not impact fundamental rights are subject to rational basis review. To satisfy this standard of review, the state law must rationally relate to a legitimate government interest—it cannot disadvantage a group of persons solely based on animus toward that group.

Sexual Orientation has never been held to be a fundamental right. However, the court has interpreted the 1964 Civil Rights Act to protect employees from discrimination based on gender identity or sexual orientation, so the issue is mostly dealt with by statute.

Question 6

due process

Answer 6

• no person shall be deprived of life, liberty, and property without due process of law
• affects everyone

Question 7

types of due process

Answer 7

1. procedural
2. substantive

Question 8

procedural due process: property rights

Answer 8

The Fourteenth Amendment due process clause requires that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property. * As a result, a judge must recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists. A failure to do so violates due process.
VVVVVVVVV

1. Is life, liberty, or property being taken?
2. if life, liberty, or property is being taken, what process is due?

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breakdown of loss of lide, liberty, and property
1. Life: Death penalty requires procedural due process
2. Liberty: Physical confinement, probation and parole, physical injury (such as a spanking in school), any restriction on legal rights (including being punished for free speech). Injury to reputation is not a loss of liberty.
3. property
* You have a property interest in your government job or benefit whenever you have a legitimate entitlement to continued enjoyment of the job or benefit.
* A mere expectation of continued employment or benefit does not suffice.
* Most government benefits are entitlements, and hence property.
* Government jobs are entitlements only when the government says so—such as by providing a contractual term or discharge only “for cause.”
* Deprivation: Notice and a hearing are not required when there is an accident. Random negligence by a state employee does not constitute a deprivation of life, liberty, or property (e.g., death by a municipal garbage truck). Deprivation requires the intentional taking away of life, liberty, or property.

what process is due

Procedural due process is variable, and the types of hearings can range from casual to very elaborate.

To decide what kind of process is due,the courts balance three factors:
1. The individual interest at stake (life, liberty, property);
2. The value of the procedure claimed in protecting that interest; and
3. The government’s interest in efficiency and cost.

Timing of the hearings

Sometimes, a hearing must occur before the deprivation.
* Examples include: Terminating welfare benefits; non-emergency revocations of driver’s licenses.

Sometimes, the hearing can occur after the action, so long as the hearing is prompt and fair
* Examples include: Terminating disability benefits; disciplinary suspension from a public secondary school.

Public employees who can be fired only “for cause must be given some opportunity to be heard prior to discharge, unless there is a significant reason not to keep the employee on the job. If there is a significant reason not to keep a person on the job, then the discharge can come first with a subsequent hearing that is prompt and provides reinstatement with back pay (fair).

NO SCRUTINY!

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CIVIL FORFEITURE

In civil forfeiture actions, the government deprives an individual of his/her property interest by seizing property allegedly used in criminal activity. As a result, procedural due process generally requires that the government provide reasonable notice of the seizure and a meaningful opportunity to be heard before a neutral decision-maker. However, personal property may be seized prior to providing notice and a hearing when:
- the seizure serves a significant government interest
- that interest would be frustrated by advance notice of the seizure and
- the seizure is performed by the government.

To determine whether real property may be seized by the government prior to providing notice and a hearing, the court must balance three factors:
-the private interest affected by the deprivation
-the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and
-the government’s interest, including the fiscal and administrative burdens that other safeguards would entail.

Question 9

substantive due process

Answer 9

• statute depriving ALL PEOPLE of doing something.
• Look at what rights are being deprived.

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the Fifth Amendment’s Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states.

If federal statute in question discriminates based on gender, then “intermediate scrutiny” is the appropriate standard of review (like gender-based school funding to remedy discrimination in sportS)

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Both substantive due process and equal protection have the same three standards of review.
(1) Strict Scrutiny

• Is the law necessary for a compelling government interest?
• Implicit in strict scrutiny is the requirement for the least restrictive means.
• When strict scrutiny applies, the government bears the burden of proof.

(2) Intermediate Scrutiny
* Is the law substantially related to an important government interest?
* Applies to classifications based on legitimacy and gender.
* note: while three standards of review are available in substantive due process and equal protection claims, intermediate scrutiny has only ever been used to decide cases based on equal protection grounds

(3) Rational Basis
* Is the law rationally related to a legitimate interest?
* The challenger bears the burden of proof of showing that this standard is not met.
* Very easy for government to pass
* Applies to all other cases (residual test)

Question 10

substantive due process: fundamental rights

Answer 10

Triggers the strict scrutiny test under both due process and equal protection
* right to vote, right to free speach, right to (inter-state) travel

(1) Due Process versus Equal Protection
* If a law denies a fundamental right to everyone, it violates due process
* If a law denies a fundamental right to only some, it violates equal protection

Question 11

substantive due right: fundamental right–> travel

Answer 11

travel

There is a fundamental right of interstate travel and settlement.
* USE STRICT SCRUTINY!

If a state’s law burdens a person’s right to interstate travel, then the state must show that the law is necessary to achieve a compelling interest to survive strict scrutiny.
* States can impose reasonable residency requirements for political participation and government benefits. (Most are 30–90 days, One year is too long for everything except in-state tuition and jurisdiction to issue a divorce)
* therefore, any residential requirement beyond acceptable period is unconstitutional and congress can not pass any law that would authorize states to enact that type of durational requirement
* BUT durational residency requirements burden the right to interstate travel when they deny basic necessities of life to newcomers of the state (like free or low cost medical treatments in state hospitals)= UNCONSTITUTIONAL
* All residents have a right to be treated equally. A state cannot have a tax scheme that favors long-term residents over recently arrived residents.

Question 12

substantive due process: right to privacy

Answer 12

strict scrutiny for all except abortion
(1) contraception
* It is a fundamental right for everyone, whether married or not, to purchase contraceptives.
(2) abortion
* In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held the Constitution does not confer a right to abortion, overruling Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.
* State supreme courts can determine whether to make abortion a fundamental right under the state’s constitution.
* States have the authority to regulate or prohibit abortion and challenges to such regulations or prohibitions are subject to rational basis review.
(3) marriage
* Substantial state interference with a marriage—including same-sex marriage—is unconstitutional.
(4) procreation
* Perhaps not technically a fundamental right—the Supreme Court found that the government has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults, including same-sex couples.
(5) private education
Parents have a fundamental right to raise their children as they see fit, including the choice of religious or private schools.
* Can lose their rights through abandonment or neglect
* However, this fundamental right is not absolute.
* SCOTUS has stated that states may impose reasonable educational standards on public and private schools—including homeschooling—that:
- require children to attend school—e.g., by specifying the number of hours of educational instruction a child must receive during an academic year
- establish minimum competency requirements for instructors—e.g., by requiring them to possess at least a high school diploma and
- define academic curriculum and content—e.g., by specifying the academic subjects that must be taught.
(6) right to raise family
* Includes the right to live together with close relatives
* the right to make decisions regarding the care, custody, and control of one’s children is a fundamental parental right.
* This right has been held to trump the right of a grandparent to have contact with a grandchild in the face of parental opposition.

(7) Obscene material
* Fundamental right to read obscene material in the privacy of one’s own home.
* However, no fundamental right to purchase, sell, import, or distribute such material.
* Does not apply to child pornography

(8) refusal of medical treatment
* Not clear whether this is a fundamental right, but there is a liberty interest in refusing medical treatment
* No right to commit suicide

O CAMPERR

Question 13

substantive due process: privacy rights: abortion scrutiny

Answer 13

undue burden test (old)
even with change of law bar may use this test
OR rational basis (will update us)

Question 14

substantive due process: privacy rights: voting

additional right to privacy- side note

Answer 14

Voting is a fundamental right to all citizens age 18 and over.

If its ordinary restriction (non-discriminatory) like voter registration, photo ID requirement, or disallowing write-ins= Reasonable basis test, challenger must show restriction lacks rational relationship to legitimate state interests

if its severe (discriminatory restriction) like poll tax, disallowing third party candidacies, ballot or signatur requirment, or property ownership requirement= strict scrutiny, state must show restriction is necessary to achieve compelling state interest

VVVVVVVVVVV
* Short-term (e.g., 30 days) residency requirements are permitted.
* Congress controls the residency requirements for presidential elections. States control residency requirements for all other elections.

ballot access
* States can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidates can reasonably comply.
* If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional.
* permissible conditions include requiring electors to pledge/swear an oath that they will cast their electoral vote for the candidate chosen by the popular vote
* states can also punish an elector who violates the pledge or by removing the elector and/or imposing a monetary fine
* fundamental right to vote does not extend to presidential electors casting electoral votes (no right to vote how they want)

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The Article I, section 4 elections clause grants state legislatures the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites).

But the clause also grants Congress the power to override those state laws by supplanting them with federal law.
* This express provision makes irrelevant general principles of federalism embodied in the “commandeering” cases.

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Right to vote—one person, one vote

Requires districts of approximately equal size, i.e., approximately the same numberof voters in each
* A deviation of 10% or less between the populations of legislative districts is minor and does not violate the equal protection clause absent evidence of discrimination.

Applies whenever you elect representatives by district
* Examples include: U.S. House of Representatives; both houses of a state legislature; local governments when they elect representatives by district.
* Exception: Special purpose governments—A government that only deals with something highly specialized (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage or water entitlements).

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gerrymandering

Comes in two varieties—racial and political

(1) racial gerrymandering
* If done with a discriminatory purpose, it’s unconstitutional.
* Voting Rights Act: Requires racial gerrymandering to ensure minority success by creating majority-minority districts.
* Rule: Race may be a factor in drawing district lines, but not the predominant or only factor.
* if race is predominant/only factor, then if it is, those boundary lines will be subject to strict scrutiny and likely invalidated on equal protection grounds.
* Other factors include compactness and observing local, political subdivisions.
* A bizarrely shaped district may be evidence of a predominant racial purposes

(2) political gerrymandering
* Can, in theory, violate equal protection. In practice, it is never struck down.
* the Supreme Court has not found any judicially manageable standard for implementing that guarantee—i.e., it is a non- justiciable political question.

Question 15

fundamental rights: second amendment- right to bear arms

Answer 15

The right to firearms is presumptively protected by the Second Amendment. The test for gun regulation is not intermediate scrutiny. In particular, there is to be no balancing of the costs and benefits of firearm regulation.

The test is historical. Firearm regulations are valid only if they fit the history of the Second Amendment.
* Banning firearms in schools, government buildings, and other sensitive locations is widely accepted, as is prohibiting possession by felons.
* The government cannot require individuals who wish to get licenses to carry firearms to show that they had some special need for self-defense.
* Everyone has that right.
* this right is not absolute, so certain government restrictions are permissible—e.g., imposing conditions and qualifications on commercial sales of firearms.

Question 16

Privileges & Immunities Clauses Distinguished

Answer 16

Recall that the Privileges & Immunities Clause of state citizenship under Article IV prohibits serious discrimination against out-of-state individuals (NOT COMPANIES), in their exercise of fundamental right or engagement in essential activity (if its not fundamental right, state can discriminate, like in hunting BUT look to see if its discriminating in an ESSENTIAL ACTIVITY- FISHING GUIDES, they make a living like this)
* note: The Privileges or Immunities of national citizenship under the 14th Amendment has no modern content and is never a strong answer that something is unconstitutional on the bar exam.

Question 17

Takings

Answer 17

referred to as a “fifth amendment taking” and includes when government destroys private property or property rights—including possessory and nonpossessory interests in land (e.g., easements, liens).

Private property shall not be taken for public use without just compensation
* Public use—need only be rationally related to a conceivable public purpose. This includes taking private property to resell to another private owner for purposes of economic development.
* Just compensation—fair market value at the time of the taking.
* However, just compensation is not required when the government destroys private property in response to a public peril
* Fifth Amendment taking requiring just compensation unless the government establishes: an essential nexus (the imposed condition substantially advances a legitimate government interest) and rough proportionality (the proposed development’s impact on the community is roughly proportional to the imposed condition’s burden on the landowner)

taking
* Under the property clause, Congress has the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands.
* Taking versus regulation—If there is a taking of property, compensation is required; if there is a mere regulation on property, compensation is not required, even if the regulation reduces the value of the property.
* Economic impact—An adverse economic impact of the government’s action does not necessarily mean there has been a taking (e.g., a new prison built next door to a beautiful, countryside home). Many regulations can dramatically affect the value of property but that does not trigger a right to compensation.
* Physical occupation—If the government physically occupies a private owner’s property, then a taking has occurred and it owes just compensation.
* If the government physically occupies only a tiny portion of your property, it is still a taking.
* No physical occupation—Generally, no physical occupation means that no taking has occurred.
* Zoning—Not a taking and no compensation is required, so long as the zoning advances legitimate interests and does not extinguish a fundamental attribute of ownership.
* Regulatory Taking—A zoning regulation can be considered a taking when it leaves no economically viable use for the property (rare) or substantially restricts its use.
* Development permits—Development is often conditioned on “concessions” by the developer, such as building an access road or donating land to a park. Such exactions are valid so long as they can be seen as offsetting the adverse impact of the development.

Question 18

types of equal protection/due process questions

Answer 18

a. recognize issues
b. what scrutiny applies

Question 19

free exercise: religion

Answer 19

(1) religious belief
Protected absolutely (entitled to hold any belief or none at all)

protects religious belief from governmental inference. This means that the government may not deny benefits or impose burdens based on religious belief, and may not determine the reasonableness of a belief. However, when there is a property dispute between two religious groups, a court may apply religiously neutral principles of law to resolve the dispute.

(2) religious conduct

form laws aimed at religion
* If the law was enacted or enforced with hostility to religion, it will be struck down (even if a facially neutral law).

Neutral regulation of conduct: Neutral, generally applicable laws must be obeyed despite religious objections.
* In Employment Division v. Smith (peyote case), states were allowed to outlaw hallucinogens, even as to Native Americans who claimed a religious motivation for their use. No constitutional requirement to accommodate their religious beliefs if the conduct was regulated neutrally and across the board.
* But, a city could not refuse to deal with a Catholic foster-child placement agency unless it agreed to serve same-sex couples and a tuition assistance program for preschool could not be limited to nonsectarian institutions.
* The caselaw is uncertain, but the laws that were struck down were unconstitutional because they allowed discretion on some ground. If a law allows exemptions from generally applicable. If a law allows exemptions from generally applicable regulations, it must allow religious exemptions unless there is a compelling reason not to do so.

Exception: “ministerial”— First Amendment requires a ministerial exception to employment laws.
* Non-discrimination employment laws cannot be applied to ministers
* First Amendment preclused claims concerning the employment
relationship between a religious institution and its ministers
* The federal government cannot regulate employment relations between a religious institution and its ministers.
* The term “minister” was construed broadly

Campus Access: A state university that allows student groups to meet on campus must allow student religious groups equal access.

Question 20

establishment clause

Answer 20

Establishment of Religion

(1) Standard of Review
* Standard of review is strict scrutiny. This is true for laws that prefer one religion over another and laws that prefer religion over non-religion.
* But strict scrutiny can also be used instead when a law directly benefits or burdens a particular religion.
* In Kennedy v. Bremerton School District, the Supreme Court “abandoned” the Lemon test (Lemon v. Kurtzman) and endorsement test (i.e., whether a reasonable observer would consider the government’s challenged action as an endorsement of religion), replacing them with a consideration of “historical practices and understanding”
* Examples: long standing public monuments and symbols with explicit religious content (if validated by history, then likely upheld but not necessarily upheld if built today); and long standing practices such as “In God We Trust” on our coins and “God Save this Honorable Court” when the Supreme Court opens session.

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Aid to Religious Institutions

Governmental financial assistance to religious institutions (college/university) is permitted if the aid is secular in nature, used only for secular purposes, and, when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral.

The Establishment Clause allows financial aid to religious primary and secondary schools.
* The government gives a voucher to parents and the parents are allowed to send their children to the schools of their choice.
* The parents are making the decision as to whether a religious school gets the money.
* The government is not picking and choosing recipients.

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Access to Public Facilities by Religious Groups

If school buildings are open after hours for club meetings or additional classes, then they must be open to religious groups on the same grounds.

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Specially Created School District

The Supreme Court struck down a school district created to serve a particular religious population. Cannot single out a particular religion for favorable treatment.

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Endorsement

It is a violation of the Establishment Clause for the government to endorse one religion over another and also to endorse religion over non-religion.
* But, many endorsements are upheld, such as “In God We Trust” on currency.

The Supreme Court wants to prevent coercive endorsement of religion (one that might override individual choice).
* Note 1: The endorsement test that the Court “abandoned” in Kennedy was whether a reasonable observer would consider the government’s challenged action as an endorsement of religion. But this did not change the Court’s stance on coercive endorsement of religion as discussed here—such coercive endorsement remains prohibited.
* The Establishment Clause prohibits government endorsement of religion in a context that might prove coercive on an individual’s conscience.
* Examples:
* Officially-sponsored school prayer is unconstitutional. However, voluntary prayer is constitutional.
* school-sponsored graduation prayer is unconstitutional. Bible reading is permissible, but cannot be inspirational (e.g., as literature or poetry).
* Display of the Ten Commandments is sometimes okay. It can be displayed for monuments (e.g., historical or promoting morals), but not to inspire religious belief.
* Can teach the Ten Commandments in school as an example of an early legal code.
* Cannot post the Ten Commandments in a classroom and leave it there every day of the school year—designed to inspire religious belief.
* Cannot post the Ten Commandments in a classroom if the context makes plain that the purpose is to endorse religious belief.
* Laws prohibiting teaching evolution have been struck down.
* legislative prayer is okay for historical practices.
* Nativity scenes are okay on public property if there is something else there to dilute the religious message (e.g., Hanukkah symbols, Rudolph the red- nosed reindeer).

ABOLISHED

govt making law which may be too closely related to religion (cant pass law establishing particular religion). apply 3 part LEMON test
1. statute has secular (non-religious) purpose
2. govt cannot promote/inhibit particular religion (everyone treated the same)
3. govt cannot get too entangled with religion (money, paying, giving financial aid support, subsidizing, scholarships, tax breaks)

Question 21

freedom of expression (time, place, and manner)

Answer 21

fundamental right

govt cannot ban speech, but can regulate speech (all forms of expression)

first amendment protects right of press to publish lawfully obtained, truthful information about matters of public significance. This right does not shield the press from generally applicable laws (breach of contract)– even if such laws incidentally affect the press’s ability to gather and report news.

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Regulation of the Content of Expression

political speech is protected, govt cnanot prohibit political speech based on its content. govt cannot condition a right or benefit on an agreement by an individual not to engage in constitutionally protected speech. presumptively unconstitutional and will not survive strict scrutiny.

U.S SC has held that threats intending to intimidate the recipient is not protected free speech

Content-based regulations of speech trigger strict scrutiny and are usually struck down.

(1) Expressive Conduct (a.k.a. Symbolic Speech)

Laws regulating expressive conduct are upheld if:
* The regulation furthers an important interest;
* That interest is unrelated to the suppression of expression; and
* The burden on expression is no greater than necessary.
* The key: If the government is trying to suppress a particular message, then the law will be struck down; if the government is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld.

(2) Vagueness and Overbreadth

Vagueness: Vague laws are ones that give no clear notice of what is prohibited and thus violate due process.

Overbreadth: Overbroad laws are ones that go too far in regulating speech. These laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the First Amendment.
* Persons can challenge a statute on its face when that statute could be unconstitutionally applied to others not before the court. That challenge will succeed if the statute reaches a substantial amount of constitutionally protected conduct (i.e., overbroad).

tip: Vagueness and overbreadth are almost always seen together on the bar exam.

(3) Prior Restraints

Are especially disfavored and will be struck down even when other forms of regulation might be upheld.

Injunctions against speech are almost impossible to get.

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Regulation of the Time, Place, or Manner of Expression (Content-neutral)

Apply in a public forum

A traditional public forum is a place historically reserved for speech activities (e.g., streets, parks, ads on highways, and public sidewalks around public buildings (but not airports)).
* BUT a public school, as a limited public forum, may allocate access to school facilities and funds among student groups when the allocation is done in a manner that is viewpoint neutral.

A designated public forum is a place the government has opened for free speech activities (e.g., a civic auditorium that rents to the public).

Only time, place, and manner may be regulated in a public forum. There are three requirements:

(1) content neutral: Must be content neutral on its face and as applied. Also, must not allow executive discretion.
(2) alternative channels of communication must be left open: Time, place, or manner law must be a guideline for speech, not a flat prohibition of speech.
(3) Must narrowly serve a significant state interest: Under this test, most content-neutral time, place, or manner regulations are upheld.
* Does not require a compelling interest

Nonpublic forum

This includes all kinds of government property that is not a public forum (e.g.,government offices, jails, power plants, military bases, airport terminals, etc.). Here, the government has great power. Any reasonable regulation of speech will be upheld.
* viewpoint discrimination is invalid (e.g., between members of different political parties).
* One should go outside to the public sidewalk surrounding the building since that is a public forum.

Question 22

types of speech regulation

Answer 22

1. content based
2. content neutral

Question 23

speech regulation: content based

Answer 23

• govt regulating words saying
• trying to stop mesage from getting out
• if you can’t do anything
• strict scrutiny

VVVVVVVVVVVVVV

Regulation of Unprotected and Less Protected Expression

There are some categories of speech that can be regulated because of content.

(1) Obscenity: Defined by the rule of “S”

• sexy: Must be erotic; appeal to the prurient interest. (Gore and violence are not legally obscene).
• make society sick: Must be patently offensive to the average person in the society. The society may be the nation as a whole, or a particular state, or a major metropolitan area.
• standards: Must be defined by the proper standards for determining what is obscene, not vague and/or overbroad.
• serious value: The material must lack serious value. If material has serious value (artistic, scientific, educational, or political), it cannot be held legally obscene. This determination is made by the court, not the jury, and it is made according to a national standard, not a local one.

Footnotes on obscenity:
* Minors: A lesser legal standard can be applied to minors, but the government cannot ban adult speech simply because it would be inappropriate for minors.
* Child pornography: Can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home.
* Land use restrictions: Narrowly drawn ordinances can regulate the where of adult theatres, but cannot ban them entirely.
* Courts have recently begun to distinguish legally obscene speech from pornography. Merely establishing that speech constitutes pornography is generally insufficient to establish that the speech is obscene.

(2) incitement

Speech is not protected if it is an incitement to immediate violence.

(3) Fighting words

Words likely to provoke an immediate breach of the peace
* General vulgarity is not enough.
* Must be aimed/targeted at someone, and that person might hit back.
* In theory, fighting words are not protected speech.
* In fact, all fighting words statutes on the bar exam are unconstitutionally vaugue and/or overbroad (e.g., laws against “hate speech”).
* However, the government cannot regulate or prohibit fighting words based on the speaker’s viewpoint (i.e., viewpoint-based regulation). Like speech banning fighting words only towards women and minorities.

(4) defamation

False statements of fact (not opinion) damaging to a person’s reputation can be prohibited

Public officials and public figures can recover for defamation only on proof knowing or reckless falsity.

Private plaintiffs can recover on proof of negligent falsity

(5) Commercial Speech

Most regulations of commercial speech are struck down. So long as the advertising is truthful and informational, it must be allowed.

Test (intermediate scrutiny): Regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored (reasonable fit between interest and means) to that interest.
* use this test EVEN where the statute discriminates with commercial speech vs non commercial speech

Misleading speech: Misleading commercials peech (unlike political speech) may be prohibited.

VVVVVVVVVVVVV

government speech

The First Amendment restrictions basically do not to the government as a speaker.

Government as a speaker is free to express a point of view (e.g., advertising the military).

specialty license plates bearing messages requested by purchasers are still government speech, so the government can refuse to issue plates that would be offensive to other citizens.

VVVVVVVVVVVVVVVVVVVVV

corporation

Corporations have the same First Amendment right to speak as individuals.

Question 24

first amendment applied to state conduct

Answer 24

1st amendment is applied to the states through the 14th amendment; use 14th amendment to attack state statutes

Question 25

speech regulation: content neutral

Answer 25

• govt regulating **time, place, and manner **
• as long as message gets out, its reasonable
• govt neutral as to content regulation
• constitutional as long as meeting significant and important interest and leaves open alternate means of expression
• NEVER pick strict scrutiny, rational basis; pick closest to above language of intermediate scrutiny

Question 26

speech: regulation of the media

Answer 26

(1) no special privileges

The press and media have no special privileges. They have the same rights as everyone else.

The First Amendment freedom of the press generally prohibits the government from restricting the right to publish lawfully obtained, truthful information about matters of public significance.

also, The First Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if:
1. the information involves a matter of public concern and
2. (2) the publisher neither obtained it unlawfully nor knows who did.

A government action that abridges this right is presumptively unconstitutional and must survive strict scrutiny.

This requires the government to prove that its action was the least restrictive means (i.e., narrowly tailored) to achieve a compelling government interest.

Additionally, the First Amendment generally guarantees the press and the public the right to attend every stage of a criminal trial.

However, this right is not absolute, and a court can order that trial proceedings be closed if the court’s findings on the record demonstrate that the closure withstands strict scrutiny.

(2) Broadcasters

The only special case is broadcasters.

Traditionally, because of early limits on the broadcast spectrum, the government had greater regulatory authority over broadcasters than over print media or the Internet.

VVVVVVVVVVVV

Regulation of Association

Freedom of association: Cannot be punished or disadvantaged because of political associations.

Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as vague and/or overbroad

Bar membership: States can investigate good character, but they cannot deny admission based on political affiliations.
* PAST (not current) membership in subversive groups is not sufficient grounds to deny bar admission, it would be unconstitutional.

Political parties: States cannot require open primaries (i.e., one in which you do not have to be registered as a member of the particular party to participate in the primary).

Punishing member of subversive organization permitted if person:
* is active member
* knows of organization’s illegal objectives and
* specifically intends to further them

VVVVVVVVVVVV

Speech by Government Employees

General rule: Government employees generally cannot be hired or fired based on political party, political philosophy, or any act of expression.
* Can be fired for disrupting the workplace or not doing their jobs.

Exception: This general rule does not apply to confidential (e.g., the President’s cabinet officers).

VVVVVVVVVVVV

Campaign Finance

The use of money to support a political campaign is political speech and the regulation of that money raises First Amendment issues.

Contributions versus expenditures:
* contributions can be regulated, provided that the limits are not unreasonably low.
* Direct contribution in support of a candidate, a campaign, or a political issue can be regulated.
* The rationale is to prevent corruption: a candidate could theoretically act in a certain way in exchange for a larger, direct contribution.

Independent expenditures versus coordinated expenditures:
* indendent expenditures cannot be regulated.
* A coordinated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated.
* The constitutional protection of direct independent expenditures applies not only to individuals, but corporations, including nonprofits, and unions.
* The Supreme Court has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures.

Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be “closely drawn” to correspond with a sufficiently important interest. Laws may limit contributions to individual candidates, but not to ballot measures.

Question 27

separation of powers

Answer 27

• one branch cannot encroach on another branch
• look for 2 branches of govt in fact pattern

Question 28

executive (president) powers

Answer 28

The Powers of the President—Domestic

Has the power to enforce the law, not to make it or break it

This power is greatest when authorized by statute. Generally, the President’s powers are subject to control by statute.

few powers that are exclusively executive and, therefore, not subject to statutory control

VVVVVVVVVVV

1. veto
2. pardon
3. executive agreement
4. appointment
5. commander in chief
6. executive order

VVVVVVVVVV

President has absolute authority to remove executive officers. Congress cannot impose any removal restrictions, including good cause requirements, except for officers who either:
* belong to a multimember body thats balances along partisan lines and exercise no executive power (committees that conduct investigations on behalf of congress) or
* lack policymaking or administrative authority (independent counsel who investigates and prosecutes against alleged crimes by government officials)

Congress can statutorily limit President’s power to remove all other executive appointees (e.g., can require good cause for removal)

VPEACE

Question 29

executive (president) powers: pardon

Answer 29

• absolute power for federal crimes
• pardons criminal or criminal record
• unappealable

Question 30

executive (president) powers: veto

Answer 30

The President has 10 days to veto legislation. The President can veto for any reason or no reason, but cannot veto specific provisions in the legislation and accept others.
* Overriding a veto requires a 2/3 majority vote of each house.

Question 31

executive (president) powers: appointment

Answer 31

Only the President (or his appointees) can hire or fire executive officers.

Some senior officers (e.g., cabinet officers, ambassadors, federal judges) require the advice and consent of the Senate to be HIRED.
* federal judge can ONLY be removed through impeachment

The Senate has a power of rejection.
* executive officers= anyone who takes action on behalf of the U.S.

The appointments clause grants Congress the power to delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.
* Just as Congress cannot hire or fire an executive officer, it cannot give executive power to any officer it can hire or fire.
* BUT when 2 branches of govt appoint members, its ok if the thing they’re creating has NO executive power

Question 32

executive (president) powers: commander in chief

Answer 32

• in charge of armed forces
• welfare, safety, send to war (NOT declare war)
• Congress can cut off funding to military actions.
• When the President does not share power with Congress over a particular area—e.g., recognizing foreign governments—the President can exercise that exclusive Article II power without congressional interference.

Question 33

executive (president) powers: executive order

Answer 33

• domestic
• may affect laws unless or until federal law on same matter
• president does not have authority to direct actions of people outside the executive branch (like private radio stations) unless it is authorized by congress

Question 34

executive (president) powers: executive agreement

Answer 34

Executive agreements are presidential negotiations not submitted for approval by the Senate. They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. They do not have the binding status of a treaty.
* may affect laws unless or until congress passes law on same matter
* And the Article I necessary and proper clause gives Congress the power to enact laws that are reasonably appropriate to carry out the President’s treaty-making power (and other express powers).

Treaties are negotiated by the President, but require approval by a 2/3 vote of the Senate. Once a treaty is ratified (approved), it has the same authority as a statute.

Question 35

Necessary and Proper Clause

Answer 35

Congress may enact legislation that is necessary and proper to execute its spending power (any authority granted to any branch of the federal government)
* Congress has the power to establish military courts and tribunals under Article I, Section 8, Clause 14 and the Necessary and Proper Clause.
* Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate.

he Necessary and Proper Clause is not an independent source of power, but it permits Congress’s otherwise designated authority to be exercised fully.
* it is not a correct answer choice by itself unless it carries into effect other enumerated powers.

Question 36

interbranch relations

Answer 36

(1) Congressional Limits on the Executive
Impeachment
* Applies to executive officers (e.g., President, Vice President, cabinet officers, federal judges)
* An accusation passed by the House of Representatives requiring a majority vote.
* Once impeached, the person is tried in the Senate.
* Conviction requires a two-thirds vote of the Senate.
* Impeachment and conviction lead to removal from office and
disqualification from holding future office. No other penalty applies.

Impoundment
* If a statute gives the President discretion to spend or withhold funds, he may do so.
* But, if a statute unambiguously requires that certain funds be spent on certain purposes, then the President cannot refuse to do so. There is no power to impound (withhold) funds.

Legislative Veto
* Unconstitutional;
* Arises when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution
* executive action= executive branch, this includes federal administrative agencies, this is under Article i, Section 7, legislative veto unconstitutional because violates president’s veto power
* If Congress wants to override executive actions, it must change the law (so that the President has an opportunity to veto the new legislation).
* Congress cannot evade the President’s guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.

(2) Delegation of Powers
* Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power.
* Not a demanding test—almost all delegations of legislative powers are upheld.
* Major questions doctrine: special rule dealing with administrative decisions of vast economic and political significance. Congress must clearly delegated that authority to the agency.
* The nondelegation doctrine prohibits Congress from delegating its exclusive legislative powers (e.g., making or repealing laws). But Congress can delegate its incidental powers (e.g., rule-making authority) to agencies in the executive branch if it provides an intelligible principle to guide the agency—i.e., a clear statement defining:
- the policy Congress seeks to advance (e.g., improve the treatment of prisoners in the federal prison system)
- the agency to carry out that policy (e.g., the Federal Bureau of Prisons) and
- the scope of that agency’s authority (e.g., issue regulations that reform the hiring requirements in the federal prison system).

(3) immunities

The President
* absolute immunity from liability for official acts (broadly construed) to
civil suits for money damages for actions while he is in office. VERY BROAD, he can slander others lol
* no immunity for acts done prior taking office
* executive privilege not to reveal confidential communications with
presidential advisers, but that privilege can be outweighed by a demonstrated need in a criminal prosecution

Judges
* Absolute immunity for all judicial acts, but may be liable for non-judicial acts (e.g., employment discrimination).
* ANYTHING said in the course of federal legislative process is immune from prosecution. assitants are cloaked in immunity too
the immunity will not protect statements made outside of Congress.

Legislators
* United States Senators and Representatives (not state legislators) are protected by the speech or debate Clause.
* Senators and Congressmen and their aides cannot be prosecuted or punished in relation to their official acts.
* The official acts of a federal legislator cannot be introduced into evidence.

Question 37

federal system

Answer 37

Federal and State Powers
* Federal powers are superior, but most federal powers are concurrent with those of the states. (If there is a conflict, Congress wins.)
* Some powers are exclusively federal, such as the power over foreign relations and the power to coin money.

Intergovernmental Immunities
* The federal government is generally immune from direct state regulation or taxation, unless Congress expressly consents. However, states can tax indirectly (e.g., taxing the income of federal employees)
* States are not immune from direct federal regulation (e.g., pollution
regulations, employment laws, etc.)
* Under the Tenth Amendment, the federal government cannot impose federal taxes directly on states that unduly interfere with their essential functions. But the Tenth Amendment does not prohibit the federal government from imposing federal taxes on states indirectly through their affiliates—i.e., persons doing business with state governments—so long as the taxes are nondiscriminatory. This is true even if the cost of the tax is ultimately passed on to the states.
* States cannot shield state officers from federal liability for violating federal constitutional rights.
* Exception: The anti-commandeering principle

State Regulation and Taxation of Commerce

(1) privileges and Immunities of State Citizenship under Article IV (Comity Clause)

Forbids serious discrimination against out-of-state individuals, absent substantial justification.
* Does not protect out-of-state corporations
* “Serious discrimination” typically involves employment.

Rule: There can be no legal requirement of residency for private employment. However, public employment can require residency requirements.
* Examples of private employment requirements (can’t depend on residency): Admission to the bar; other occupational licenses.
* Examples of public employment (can depend on residency): A city hiring only city residents or requiring a certain percentage of city residents on city construction projects.

Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access
* This is not exclusive. Look for answer choice that says congress explicitly authorized (regulaitng activities substantially affecting interstate commerce)

Question 38

legislative powers

Answer 38

In theory, the federal government is a government of limited powers. In fact, the federal government can do almost anything it likes, so long as it does not violate individual rights.

1. commerce
2. spending
3. coin money
4. federal lands
5. taxing
6. war

Question 39

legislative powers: commerce

Answer 39

inter-state regulation

can regulate anything that has a substantial effect upon interstate commerce

plenary power, do whatever they want

Congress can regulate:
* The channels of interstate commerce (highways, seaways, airways, etc.);
* The instrumentalities of interstate commerce (cars, trucks, railroads, ships, etc.); and
* Intrastate (and interstate) activity (economic or commercial) that has a substantial effect on interstate commerce.

substantial effect is judged in the aggregate. The question is whether the aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce, and the answer is almost always yes.

Not within the Commerce Clause: For non-economic, non-commercial activity, Congress can regulate intrastate actions only by actually demonstrating a substantial effect on interstate commerce (substantial effect is presumed for economic or commercial activity). Thus, Congress cannot regulate purely intrastate, non-commercial, non-economic activity for which a substantial effect on interstate commerce has not been shown.

Question 40

legislative powers: taxing

Answer 40

can tax, if it raises revenue for general welfare

The Taxing Clause is the right answer whenever Congress imposes a tax, even when the tax is actually used to prohibit the good or activity in question.

The tax need only be rationally related to raising revenue.

Question 41

legislative powers: spending

Answer 41

Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause.

can spend, if for general welfare

plenary power, congress can choose how it spends money so long as choice is serving gen welfare and doesnt violate constitution

Question 42

legislative powers: coin money

Answer 42

• in charge of currency
• total power

Question 43

legislative powers: federal lands

Answer 43

• all federal property, total jurisdiction and power

Question 44

legislative powers: war

Answer 44

Congress has the power to declare war and the power to maintain the Army and Navy.

Congress has the power to provide for military discipline of U.S. military personnel.

Congress can provide for military trial of enemy combatants and enemy civilians.

Congress cannot provide for military trial of U.S. citizens who are civilians.

Question 45

judicial powers: source, scope, limitation

Answer 45

source : Article III

VVVVVVVVVVVVV
scope: The jurisdiction of federal courts is limited to cases or controversies.

VVVVVVVVVVVVV
limitations: The Eleventh Amendment (“11th Amend.”) and State Sovereign Immunity

Article III lists the kinds of cases that come within the judicial power of the United States— the most important are diversity jurisdiction (i.e., disputes between citizens of different states) and federal question jurisdiction (i.e., cases arising under federal law).

Exception: 11th Amendment and preexisting concept of state sovereign immunity
* Rule: You cannot sue a state for money damages in either state or federal court unless the state consents or the U.S. Congress expressly says so to enforce 14th rights.
* The Eleventh Amendment bars private parties and foreign governments from suing a state in federal court without the state’s consent. But it does not bar suits brought by the United States or another state.
* Note: 11th Amend. protects states and state agencies, not local governments (i.e., no immunity for cities, counties, or towns).
* Note: A state’s sovereign immunity applies in both federal and state court, unless the state consents, or Congress expressly says so to enforce Fourteenth Amendment (“14th Amend.”) rights.
* When enforcing individual rights, Congress can override state sovereign immunity.
* each of the Thirteenth, Fourteenth, and Fifteenth Amendments contains a provision that authorizes Congress to pass “appropriate legislation” to enforce the civil rights guaranteed by those amendments against the states
* It can force states to pay money damages for violating individual rights, but it must say so expressly.
* BUT, Congress cannot abrogate Eleventh Amendment immunity by exercising its Article I powers. IF FACT PATTERN SAYS CONGRESS PASSES A STATUTE ALLOWING A STATE TO BE SUED BY USING ITS AUTHORITY UNDER COMMERCE CLAUSE, ITS WRONG BECAUSE IT CANNOT ABROGATE STATE IMMUNITY UNDER CONGRESS’ ARTICLE I POWERS
* Any lack of clarity will preclude damages.
* If you can’t sue a state, then sue the state officer
* Injunctive relief—you can always get injunctive relief simply by enjoining the appropriate state officer (e.g., sue the state attorney general)
* Exception: cannot enjoin state judges or clerks for violating the law. The remedy would be filing an appeal.
* Money damages—you can also sue an officer for damages personally for some kind of constitutional tort
* Damages from the state treasury are barred (unless the state consents or Congress expressly says so to enforce individual rights).

Question 46

judicial powers: original jurisdiction vs appellate jurisdiction

Answer 46

Original jurisdiction

A case may be filed first in the Supreme Court (controversies between states, mostly).
* congress shall not enlarge/restrict original jurisdiction, cant go straight to US supreme court
* but can send/prevent cases from being sent to us appellate courts

VVVVVVVVVVVVVVVVVVVVVVV

appellate jurisdiction

Mostly, the jurisdiction of the Supreme Court is appellate.

U.S. Supreme Court has appellate jurisdiction over decisions by:
1. lower federal courts
2. highest state court when decisions turn on federal law

BUT THIS IS SUBJECT TO EXCEPTIONS/REGULATIONS AS CONGRESS MAKES (CONGRESS CAN RESTRICT APP. JURISDICTION)xr

certiorari
* Almost all cases come to the Supreme Court by way of writ of certiorari.
* The key factor is that granting a writ of certiorari is discretionary with the court.
* The Supreme Court is the only federal court that exercises discretionary jurisdiction.

Limitations on the Supreme Court’s appellate jurisdiction
* Congress can make exceptions to the Court’s appellate jurisdiction (i.e., Congress can effectively control the Supreme Court’s docket (its appellate jurisdiction) by legislating exceptions to its appellate jurisdiction).

Adequate and Independent State Grounds (AISG)
* Arises only in the U.S. Supreme Court, and it arises only when the Supreme Court reviews a state judgment.
* Rule: The Supreme Court can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on an adequate and independent state ground.
* Adequate: The state ground must control the decision no matter how a federal issue is decided. AISG shows up when the federal claimant (i.e., the party asserting a federal right) wins anyway under state law.
* Independent: The state law does not depend on an interpretation of federal law (e.g., no AISG if state law adopts or follows federal law).
* If a state court decision is unclear as to the basis of the decision (i.e., whether it is based on the state constitution or the federal constitution), the Supreme Court can review the federal issue.
* If the Supreme Court agrees with the state court’s decision of federal law, it remands the decision.

Question 47

judicial powers: supreme court vs lower federal courts (district court, district court of appeals)

Answer 47

• generally power has to be separate
• congress has no jurisidction of supreme court but does over lower federal court
• can create more lower federal courts

Question 48

supremacy clause

Answer 48

when federal law conflicts with state law, federal law wins

supreme law of the land

in fact pattern, look for (1) fed law, (2) state/local law

VVVVVVVVVV

Habeas Corpus

A writ of habeas corpus is a court order that a person in custody be brought before the court to determine if his detention is legal.

When the person is in federal custody only a federal court can issue a writ of habeas corpus to challenge that person’s detention.

State courts are prhibited from challenging legality of a person being held in federal custody.

Supremacy clause seeks to promote the supremacy of federal aciton over state action.

Question 49

states rights: 10th amendment

Answer 49

• when no conflict between federal and state laws, state law can be stricter but not less restrictive than federal laws
• when no federal law on subject, state can exercise police power to provide for health, saefty, and welfare of citizens
• there is NO FEDERAL POLICE POWER
• congress cannot pass a law for general welfare
• congress can tax and spend for general welfare–> when raising revenue, taxin/spending on its face is not rendered invalid bc it may have adverse economic consequences for the activity taxed

Question 50

states rights: commandeer rule

Answer 50

• congress can’t require state to do anything
• they can ask/delegate/work together, but not require state to adopt or enforce regulatory programs. It cannot commandeer state and local agencies to implement federal programs.

What can Congress do to enforce regulatory programs?
* It can bribe states through use of the spending power.
* It can adopt its own regulatory program and enforce it with federal officers.

bribing the states:
* Congress can use this spending power to incentivize states to adopt federal policies by placing appropriate conditions on the receipt of federal funds
* A condition is appropriate when it:
* is clear and unambiguous (eg, requiring states to comply with the testing requirement or lose federal funding)
* is reasonably related to the purpose for which the funds will be expended (eg, requiring academic testing to reduce the academic achievement gap)
* does not require recipients to engage in unconstitutional activity (eg, developing and administering a statewide academic test is not unconstitutional) and is not unduly coercive.
* a condition is unduly coercive if it amounts to a “gun to the head” of a state.
* Although SCOTUS has not provided concrete guidance on how to make this determination, it has invalidated a condition that would have withheld 10% of a state’s overall budget.

Question 51

limitations on bringing cases to federal court

if these rules apply, you can’t sue in fed court

Answer 51

1. mootness
2. ripeness
3. standing
4. state action

Question 52

limitations on bringing cases to federal court: standing

Answer 52

Standing to sue includes injury, causation, and redressability.

injury
Almost anything can be injury (past or future), especially if Congress says so.

Must be concrete (not abstract), but need not be economic (e.g., if your freedom of movement or enjoyment of public space is impaired, that constitutes injury).

Mere ideological objection is not injury.

An organization has standing if members have standing.

causation

Test: Defendant’s conduct has caused or will cause the injury.

redressability

A court can remedy or redress the injury.
* If the injury is in the past, the remedy is damages
* If future injury is threatened, the remedy is an injunction
* Past injury does not give automatic standing to seek an injunction for future injury. To get an injunction, you must show the prospect that it will happen again.

Standing Examples and Commonly Tested Standing Issues

Federal taxpayers always have standing to challenge their own tax liability. However, taxpayers do not have standing to challenge government expenditures (no injury).
* Narrow exception under the Establishment Clause: An establishment of religion challenge to specific congressional appropriations can be raised by any taxpayer
* Note: state courts often allow municipal taxpayers to challenge a municipality’s expenditures

Legislative standing
* Legislators do not have standing to challenge laws that they voted against.
* In some circumstances, the legislature itself as a body may have standing, if the claim concerns its institutional functions.
* federal/state legislature has to show (RARE) that the action caused the legislator PERSONAL AND CONCRETE HARM (like it nullified their vote)
* abstract harm shared equally by all legislators in that respective body does not confer standing

“Third-party standing” (Raising the rights of someone else)
* generally, no standing
* Exception: Parties to an exchange or transaction can
raise the rights of other parties to that exchange or transaction.

Question 53

limitations on bringing cases to federal court: state action

Answer 53

The 13th Amendment (outlawing slavery and involuntary servitude) applies directly to private parties and individuals, but it is narrow in its focus.

Other individual rights apply to states and localities through the 14th Amendment, which requires state action.

“State action” means government action, whether state or local (e.g., a county firing a sheriff is state action; a city denying a permit is state action).
* under state action, a private actor is considered a government actor and bound by constitution when the private actor performs a traditional and exclusive government function or the government is significantly involved in the private actor’s activities, which requires more than funding, licensing, regulating, or granting a franchise.

Most state action is clear, but not always. Government cannot be significantly involved in private discrimination.

Significant state involvement:
* Government cannot be significantly involved in private discrimination.
* government creates nexus by affirmatively facilitating or authorizing private action
* Government cannot facilitate/profit from private discrimination.
* But, government is not required to prevent private discrimination.

Generally,the government acts constitutionally so long as its own conduct is neutral and even-handed (e.g., trespass laws, liquor licenses for private clubs).

Anti-Discrimination Statutes
* State action is required to show a violation of the Constitution.
* State action is irrelevant if there is anti-discrimination legislation.

Question 54

limitations on bringing cases to federal court: state action EXCEPTION

Answer 54

Congress has broad power to legislate against racial discrimination, whether private or public.

13th amendment = bans slavery
* incidence/consequence of this: if express and explicit race discrimination, no state action is required
* private person/corporation can be prosecuted
* something personal must be at stake to have standing, such as economic/other harm

Question 55

limitations on bringing cases to federal court: ripeness

Answer 55

Ripeness concerns prematurity of a case. You must show actual or an immediate threat of harm.

case not ready for trial

“no case or controversy”

have not passed/enacted law yet

maybe law passed, but not enacted yet, or maybe govt is considering passing statute

Mootness cases are overripe and dismissed whenever they become moot. Cases can become moot during trial or on appeal, where the judgement below is dismissed as if it never happened.
* Exception: Cases capable of repetition, yet evading review, are not moot, even though they look like it.
* Such controversies always have an internal time limit (e.g., restriction on certain activities within 90 days of elections, but issue will reoccur by the next election).

Question 56

judicial power: advisory opinions

Answer 56

Federal courts cannot issue advisory opinions.

Federal courts cannot rule on the constitutionality of proposed legislation.

Question 57

judicial power: political questions

Answer 57

A non-justiciable question when it is inappropriate for judicial resolution
* The issue is committed to another branch of government (executive or legislative) for decision; OR
* There are no manageable standards for adjudication.

Examples of non-justiciable political questions include:
* reception of ambassadors
* nature of wars/hostilities
* gurantee clasue: guranteering republican form of government
* recognition of native american tribes
* house/senate rules for impeachment
* ratification process for constitutional amendments
* Foreign affairs (e.g., opening or breaking off diplomatic relations with another country, recognition of foreign governments);
* Political gerrymandering (drawing districts to establish a political advantage of one party over another) in theory might be unconstitutional, but in fact the Supreme Court found no judicially manageable standards for determining how districts should be drawn. (Note that state courts have found that it violates state constitutions.)

Question 58

the federal system: state regulation and taxation of commerce –> dormant commerce clause

Answer 58

Protectsout-of-state businesses as well a sout-of-state individuals.

The dormant commerce clause prohibits states from discriminating against interstate commerce unless:
1. the discriminatory law furthers a legitimate noneconomic state interest and
2. there is no reasonable alternative to achieve that interest.

congress has the sole power to regulate the trade between the US and foreign governments and the dormant commerce clause prevents state regulation from being unduly burdensome on confressional commerce powers.

Dormant describes what the Commerce Clause means in the absence of federal regulation.

Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. (ex: state passes law, SC says it violates DCC, congress passes same law as fed law, its ok under congress commerce powers

Rule: In the absence of federal regulation, state regulation of commerce is valid so long as:
1. There is no discrimination against out-of-state interests;
2. The regulation does not unduly burden interstate commerce; and
3. The regulation does not apply to wholly extraterritorial activit

No discrimination against out-of-state interests

Examples include: Forbidding the sale of only out-of-state products; taxing out-of-state products at a higher rate; requiring that manufacturing be performed in-state.

Hypothetically ok if there is a substantial state interest and no other non-discriminatory means is available; this is incredibly rare.

Question 59

dormant commerce clause exceptions

Answer 59

1. market participant
2. congress allows

Question 60

dormant commerce clause exceptions: market participant and congress allows

Answer 60

When a state is buying or selling goods or services, it can choose to deal with only in-state persons.
* Examples include: Sale of cement produced by state-owned plant only to in- state purchasers; garbage stored in state-owned landfill limited to in-state garbage; law requiring 50% local workforce on state-financed construction projects.

Subsidies—A state can always choose to subsidize only its own citizens (for example, welfare benefits or in-state college tuition).

Federal Approval—Dormant Commerce Clause applies only in the absence of federal action. If Congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests.
* However, even when Congress has authorized conduct that would otherwise violate the dormant commerce clause, states must comply with other constitutional provisions when engaging in that conduct.
* This includes the Fourteenth Amendment equal protection clause, which subjects discriminatory state taxes to rational basis review.
* This level of review requires that the discriminatory state tax rationally relate to a legitimate government interest.
* example: though encouraging the growth of an industry within a state is permissible, promoting domestic (i.e., in-state) business by discriminating against nonresident competitors is unconstitutional.

No undue burdens on interstate commerce
* Non-discriminatory state regulation of commerce is almost always upheld.
* Only when it is so outrageously costly relative to the benefits of the
regulation is a non-discriminatory state regulation struck down as an undue burden on interstate commerce.
* This is a balancing test, but non-discriminatory regulations are rarely struck down.
* ANY state law that has a substantial effect on interstate commerce must not be protectionist or otherwise impose an undue burden on interstate commerce.
* A protectionist law benefits in-state interests at the expense of out-of-state interests.
* A state law that discriminates against interstate commerce is protectionist unless it serves a legitimate locla interest that cannot be served by non discriminatory legislation.

No regulation of wholly extraterritorial activity
* A state may not regulate conduct occurring wholly beyond its borders.

Question 61

state taxation of interstate commerce

Answer 61

Discriminatory taxation will be struck down unless Congress consents, and non- discriminatory taxation will be upheld unless it is unduly burdensome

Non-discriminatory taxation is valid if the following two requirements are met:
1. Must be a substantial nexus between the taxing state and the
property or activity to be taxed (“Substantial nexus” does not require any type of physical presence.)
2. Must be a fair apportionment of tax liability among states

A state tax imposed on interstate commerce must satisfy the Complete Auto test.

Under this test:
1. the activity taxed must have a substantial nexus to the taxing state,
2. the tax must be fairly apportioned,
3. the tax may not discriminate against interstate commerce, and
4. the tax must be fairly related to the services provided by the state.

In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not:
1. create a substantial risk of international multiple taxation or
2. prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues.

For example, if cargo containers are subject to tax by the home country of the foreign corporation, the state tax subjects the containers to international multiple taxation, and thus the first of these two additional requirements has not been met. Consequently, the state tax on the cargo containers owned by the foreign corporation violates the Commerce Clause.

Ad Valorem (value-based) Property Taxes

Levied on personal property

Distinguish between two kinds of personal property because they are taxed differently:

Commodities are the goods that move from state to state.
* States tax all commodities within their borders on a specified date (called tax day), but not goods that are merely in transit—the commodities have to come to rest in the state.
* Rule: Pay the full tax to every state where goods are stopped for a a business purpose on tax day. No taxes are due where they are merely in transit (passing through)

Instrumentalities are the transportation equipment that moves commodities (railroads, trucks, airplanes, etc.)
* Fair apportionment of tax liability among states with a substantial nexus to the instrumentality.
* Each state in which an instrumentality is used can tax the value of that instrumentality.

Question 62

bill of attainder

Answer 62

• usually wrong answer (confused with equal protection)
• right answer when: state passes law naming individual/group of people and punishes them with civil charges or penalties (levies fine/imprisonment)
• a legislative punishment imposed without judicial trial and is unconstitutional.

Question 63

ex-post facto

Answer 63

when state makes conduct which was legal, retroactively illegal

Unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct.

Question 64

prohbited legislation: Contract Clause

Answer 64

Bars states from legislative impairment of existing contracts, unless there is an overriding need (something like an emergency).
* This happens when a state is subtantially iMPAIRING ones rights under a contract

Question 65

prohbited legislation: Contract Clause

Answer 65

Bars states from legislative impairment of existing contracts, unless there is an overriding need (something like an emergency).
* This happens when a state is subtantially iMPAIRING ones rights under a contract

Question 66

5th vs 14th amendment

Answer 66

both have to do with dp and ep

state gets power from 14th amendment (dp/ep)

congress gets power from 5th amendment (dp/ep)

99.9% of the time fact pattern will say state is passing the law

Question 67

the legislative power: power to enforce the civil war amendments

Answer 67

Section 5 of the 14th amendment
* Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts.
* example, protecting procedural due process (state intentionally deprives life, liberty, or property interest without notice and hearing)

legislation is appropriate under this section when it:
* seeks to remedy or prevent state action that violates the 14th amendment and
* is narrowly tailored- its requirements are congruent with and proportional to the violations it addresses

Does not enable Congress to redefine constitutional rights by legislation

Only permits Congress to adopt remedies reasonably designed to enforce individual rights as they have been defined by the courts

15th amendment:
* Congress has the power to ensure there is no racial discrimination in voting.

Question 68

preemption

Answer 68

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 69

preemption

Answer 69

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 70

Relations Among States

Answer 70

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 71

preemption

Answer 71

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 72

Relations Among States

Answer 72

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 73

Relations Among States

Answer 73

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 74

preemption

Answer 74

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 75

preemption

Answer 75

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 76

Relations Among States

Answer 76

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 77

preemption

Answer 77

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 78

Relations Among States

Answer 78

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 79

preemption

Answer 79

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 80

Relations Among States

Answer 80

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 81

preemption

Answer 81

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 82

Relations Among States

Answer 82

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 83

preemption

Answer 83

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 84

Relations Among States

Answer 84

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 85

preemption

Answer 85

Federal law preempts overrides state law.

State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict.

Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Question 86

Relations Among States

Answer 86

Interstate compacts are agreements among states. If the compact affects federal rights, Congress must approve.

Full Faith and Credit Clause: States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdictions to render a final judgment on the merits.

Question 87

dormant commerce clause: types of discrimination

Answer 87

facial discrimination regulation’s language explicitly favors in-state commerce
* “corn grown out of state must satisfy more extensive safety measures”

discriminatory application

facially neutral regulation applied to favor in-state over out-of-state commerce
* state inspects corn grown out-of-state but not corn grown in-state

discriminatory effect

otherwise neutral regulation disproportionately affects out-of-state commerce
* enforcement of safety measures results in ban of corn grown out-of-state only

VVVVVVVVVV

DCC prohibits states from discriminating against out-of-state commerce or otherwise unduly burdening interstate commerce in ANY of these ways
1. unless the regulation furthers a legitimate non-economic state interest
2. that could NOT Be achieved by reasonable alternatives

Question 88

dormant commerce clause: types of discrimination

Answer 88

facial discrimination regulation’s language explicitly favors in-state commerce
* “corn grown out of state must satisfy more extensive safety measures”

discriminatory application

facially neutral regulation applied to favor in-state over out-of-state commerce
* state inspects corn grown out-of-state but not corn grown in-state

discriminatory effect

otherwise neutral regulation disproportionately affects out-of-state commerce
* enforcement of safety measures results in ban of corn grown out-of-state only

VVVVVVVVVV

DCC prohibits states from discriminating against out-of-state commerce or otherwise unduly burdening interstate commerce in ANY of these ways
1. unless the regulation furthers a legitimate non-economic state interest
2. that could NOT Be achieved by reasonable alternatives

Question 89

dormant commerce clause: types of discrimination

Answer 89

facial discrimination regulation’s language explicitly favors in-state commerce
* “corn grown out of state must satisfy more extensive safety measures”

discriminatory application

facially neutral regulation applied to favor in-state over out-of-state commerce
* state inspects corn grown out-of-state but not corn grown in-state

discriminatory effect

otherwise neutral regulation disproportionately affects out-of-state commerce
* enforcement of safety measures results in ban of corn grown out-of-state only

VVVVVVVVVV

DCC prohibits states from discriminating against out-of-state commerce or otherwise unduly burdening interstate commerce in ANY of these ways
1. unless the regulation furthers a legitimate non-economic state interest
2. that could NOT Be achieved by reasonable alternatives

Question 90

dormant commerce clause: types of discrimination

Answer 90

facial discrimination regulation’s language explicitly favors in-state commerce
* “corn grown out of state must satisfy more extensive safety measures”

discriminatory application

facially neutral regulation applied to favor in-state over out-of-state commerce
* state inspects corn grown out-of-state but not corn grown in-state

discriminatory effect

otherwise neutral regulation disproportionately affects out-of-state commerce
* enforcement of safety measures results in ban of corn grown out-of-state only

VVVVVVVVVV

DCC prohibits states from discriminating against out-of-state commerce or otherwise unduly burdening interstate commerce in ANY of these ways
1. unless the regulation furthers a legitimate non-economic state interest
2. that could NOT Be achieved by reasonable alternatives

Question 91

dormant commerce clause: types of discrimination

Answer 91

facial discrimination regulation’s language explicitly favors in-state commerce
* “corn grown out of state must satisfy more extensive safety measures”

discriminatory application

facially neutral regulation applied to favor in-state over out-of-state commerce
* state inspects corn grown out-of-state but not corn grown in-state

discriminatory effect

otherwise neutral regulation disproportionately affects out-of-state commerce
* enforcement of safety measures results in ban of corn grown out-of-state only

VVVVVVVVVV

DCC prohibits states from discriminating against out-of-state commerce or otherwise unduly burdening interstate commerce in ANY of these ways
1. unless the regulation furthers a legitimate non-economic state interest
2. that could NOT Be achieved by reasonable alternatives

Question 92

dormant commerce clause: types of discrimination

Answer 92

facial discrimination regulation’s language explicitly favors in-state commerce
* “corn grown out of state must satisfy more extensive safety measures”

discriminatory application

facially neutral regulation applied to favor in-state over out-of-state commerce
* state inspects corn grown out-of-state but not corn grown in-state

discriminatory effect

otherwise neutral regulation disproportionately affects out-of-state commerce
* enforcement of safety measures results in ban of corn grown out-of-state only

VVVVVVVVVV

DCC prohibits states from discriminating against out-of-state commerce or otherwise unduly burdening interstate commerce in ANY of these ways
1. unless the regulation furthers a legitimate non-economic state interest
2. that could NOT Be achieved by reasonable alternatives