MBE Constitutional Law

Question 1

Justiciability

Answer 1

For a case to be heard in federal court, it must be justifiable, meaning a case or controversy must exist.

To determine whether a case or controversy exists, the case must satisfy requirements for: 1) Standing 2) Ripeness 3) Mootness 4) Political Question Doctrine

Question 2

Standing

Answer 2

^{A party must have a concrete interest in the outcome of the a claim to have it heard in federal court. Requirements:}

Injury–P must have suffered some injury or show a likelihood of imminent injury

• ^{>> Note: Look for P’s who have personally suffered injury or economic loss}
• >> P’s seeking an injunction or declaratory relief must show a likelihood of future harm ^{(e.g. choke hold case)}

Causation and Redressability--P must allege that D caused the injury and that the court can grant a proper remedy

_______________________

No generalized grievances–P cannot sue solely as U.S. citizen or taxpayer to compel the govt to act in a particular way

• EXCEPTION: Taxpayers have standing to challenge specific govt expenditures pursuant to the Establishment Clause ($ only)

Question 3

Third Party Standing

Answer 3

P may assert the rights of another where

1. P has suffered an injury

AND

a) P’s Injury adversely impacts his relationship with third parties ^{(close relationship)}:

• >> P may assert the rights of a third party whose injury adversely affects P or his relation with P
• ^{E.g. Doctor could assert patient’s rights in challenging abortion restrictions; bar owner could assert underage male’s rights in attacking state ban on beer sales to underage males only}

OR

b) Injured party is unlikely or unable to assert his own rights

• ^{>> E.g. Association could attack law requiring disclosure of member identities because members could not attack law directly without revealing their identities}

Question 4

Organizational Standing

Answer 4

Organizations always have standing if the injury is to the organization itself.

Organizations may also sue on behalf of members if:

• a) Members would have standing to sue individually;
• b) Injury is related to the organizations purpose (Key Term: germane);
• and
• c) Neither claim nor relief requires participation of individual members

Question 5

Ripeness and Mootness

Answer 5

Justicable cases canno be ripe or moot

Ripeness–P not entitled to review of a law before it is enforced (or passed into law)

• * I.e. Court will not hear a case unless P has been harmed or suffers an immediate threat of harm
• ^{Tip: Request for Declaratory Judgment triggers a Ripeness issue}

Mootness–A live controversy must exists at all stages of review

• * If circumstances causing P’s asserted harm cease to exist after P files suit, the case must be dismissed as moot
• EXCEPTIONS:
  
  • 1) Wrongs capable of repetition but evading review ^{>> Arises when injury ceases before complete litigation of the claim but P can reasonably expect to be subject to the}
  • 2) Voluntary Cessation by D - D ceases the act givin grise to P ‘s suit but can resume them at any time
  • 3) Class Action Lawsuits - only one member of the class must have an ongoing injury

Question 6

Politcal Question Doctrine

Answer 6

Federal courts will not adjudicate Political questions:

a) The Constitution commits to another brach of the govt ^{(i.e. not the judiciary)}

^OR

b) Are incapable of judicial resolution or enforcement

Four common political questions deemed non-justiciable:

• 1) Actions under the “republican form of government” clause in the Constitution
• 2) Challenges to the President’s conduct of foreign policy
• 3) Challenges to impeachment and removal proceedings
• 4) Challenges to partisan gerrymandering (election districts)

Non-Political Questions Deemed Justiciable:

• Legislative Apportionment and 1 person 1 vote
• Production of Presidential Papers/Communication

Question 7

Supreme Court Review

Methods of Review

State Court Decisions

Answer 7

SCOTUS Review of State Court Decisions: SCOTUS cannot review a state court decision that rested on independent, adequate state law grounds

• ^{If state decision is based on BOTH federal and state law >> SCOTUS may only review decision that cannot stand on state grounds alone}
• ^{Can review cases where state law influences or contradicts federal law.}

Methods of Supreme Court review:

1) Discretionary Review = Most cases get tot he USSC by writ of certiorari; the Court then decides whether to grant review
2) Mandatory Review = The Court must take appeals from 3-judge district court panels regardless of injunctive relief ^{>> This bypasses the courts of appeal}
3) Original and Exclusive Jurisdiction = Suits between states _{^{>> These suits must be filed in the SC Final Judgment Rule–}}SC only hears cases on review if there has been a final judgment of a lower federal court or a state’s highest court

Question 8

Sovereign Immunity

Suits Against State Officers

Answer 8

^{The 11th A bars suit against state govts in federal court.}

FEDERAL COURTS CANNOT HEAR - Private Party or Foreign Govt v. State Govt

EXCEPTIONS: Suits against state govts are allowed if:

1) State explicitly waives sovereign immunity or consents
2) The suit involves the enforcement of law under Section 5 of the 14th A and Congress has removed immunity
3) federal govt brings suit
4) Bankruptcy proceedings

____________________

Suits against state officers–Can be brought in federal court if the suit involves either:

• Injunctive relief claim for violation of the Const. or federal law;
• OR
• Claim for money damages* to be *paid by the state officer personally

Question 9

FEDERAL LEGISLATIVE POWERS

Necessary and Proper Proper Clause

Answer 9

Congress can exercise constitutionally-enumerated powers and all auxiliary powers that are necessary and proper to carry out those enumerated powers

Not an independent source of power–The Nec and P Clause does not confer free-standing, independent source of power to Congress; it must be used in conjunction with another federal power

Note: Because the Ned and P Clause is not a source of congressional power, it is usually an incorrect answer choice on to MBE questions regarding Congress’ power to act, unless linked to another source of power

Question 10

FEDERAL LEGISLATIVE POWERS Taxing and Spending Power

Answer 10

Congress may tax and spend in any way deemed necessary for the “general welfare” (a very broad power)

• >> Note: “General welfare” as an answer choice is usually correct only if question concerns taxing, spending, or an area within Congress’ limited police power (military, Indian reservations, land, D.C.)
• >> Taxes must reasonably relate to to revenue production (a very low threshold)

Regulations–Congress can use taxing power to achieve a regulatory effect as long as the tax’s dominant intent is to raise revenue and there is some reasonable relationship between the tax and the regulation (low burden to satisfy)

Ad Valorem Property Tax: Tax based on % of the assed value of the property in question

Question 11

FEDERAL LEGISLATIVE POWERS Congressional Police Power

Answer 11

Congress has no general police power; except for legislation concerning:

1) Military
2) Indian Reservations
3) Land–i.e federal land or territories
4) District of Columbia

Question 12

FEDERAL LEGISLATIVE POWERS

Power to Regulate Commerce (Foreign or Domestic)

Answer 12

The Commerce Clause gives Congress exclusive authority to regulate interstate commerce.

The power to regulate intrastate commerce depends on the nature of the activity (economic vs. non-economic)

INTERstate Commerce–Between States Congress may regulate:

1) Channels;
2) Instrumentalities;

OR

3) Economic activities that have a substantial effect on interstate commerce
* This Includes persons and things in interstate commerce

INTRAstate Commerce–Within States

* Economic Activities: Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity in aggregate substantially affects interstate commerce

Question 13

FEDERAL LEGISLATIVE POWERS

10th A Limitations on Congressional Power

• Including Conditional Grants

Answer 13

Under the 10th A, all powers not granted to the federal govt, nor prohibited to the states, are reserved to the states. This Limits Congress’ ability to regulate and/or tax states individually

• >> EXCEPTION: Civil rights; Congress may restrict state activities that violate civil liberties
• ^{* Regulations applying to both public and private sector are usually valid >> _{E.g. Fed minimun wage laws are applicable to state/local govt as well as private sector}}

Conditional Grants

• Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants ^{>> E g Fed highway funds conditioned on states}
• Test: Condition must be
  
  • Expressly Stated and
  • Related to the purpose of the law at issue
  • ​Also can’t be unduly coercive (ex. failure to adopt obamacare results in loss of all state medical funding)

Question 14

FEDERAL LEGISLATIVE POWERS

Congressional Delegation of Powers

• Delegation in General + Line Item Vetos

Answer 14

Congress has broad authority to delegate legislative powers to executive officers and administrative agencies ^{* Administrative agencies established by congressional enabling acts can create rules that have the status of law.}

Delegation Requirements for Congress

>> Provide intelligible standards to define the scope of delegated authority

>> CANNOT delegate executive or judicial powers to itself or its officers ^{(e.g. Congress cannot create commissions that enforce or prosecute violations of law)}

• ^{Note: B/c the delegation power is broad, be wary of answer choices regarding excessive delegation}

Legislative and Line-Item Vetos

• Legislative Veto - Congress cannot veto a decision by an agency acting pursuant to delegated power. ^{It must be overturned by enacting a superseding law}
• Line Item Veto - President cannot veto part of a bill ^{President must sign bill in its entirety}

Question 15

FEDERAL LEGISLATIVE POWERS Speech or Debate Clause

Answer 15

The Speech or Debate Clause provides immunity from prosecution to members of Congress for “legislative acts” *

Applicability–Applies to legislators and aides who perform acts that would be immune if performed by the legislator ^{>> Not applicable to STATE legislators}

Scope–Provides immunity for activities occurring in the regular course of the legislative process * ^{E..g voting, preparing committee reports, conducting hearings, hiring staff}

Outside Scope–Speeches and publications made outside Congress, republication of defamatory statement made in Congress, accepting bribes are not legislative acts

Question 16

FEDERAL EXECUTIVE POWER Appointment Power

Answer 16

Appointment Power

President–Can appoint ambassadors, federal judges, and other high-level officers with the advice and consent of the Senate

Congress–Cannot give itself appointment powers

• >> Can vest power to appoint inferior officers in President, courts, heads of departments or agencies _{<strong>^{Inferior Officer = Usually those working under presidentially-appointed officers (i.e. can be fired by the appointed officer)}</strong>}

Question 17

FEDERAL EXECUTIVE POWER Removal Power

Answer 17

Removal Powers

President–Can remove high-level executive officers

• >> Congress can statutorily limit President’s power to removal all other executive appointees ^{<em>(e.g. can require good cause for removal) </em>}

Congress–Can only remove executive officers through its impeachment power

Article III Judges cannot be removed “during good behavior”

Question 18

FEDERAL EXECUTIVE POWER Impeachment

Answer 18

House can impeach the President, VP, federal judges, and federal officers for

treason,

bribery

high crimes and misdemeanors

____________________________

House needs Majority Vote for impeachment

+

Trial in the Senate needs 2/3 Vote for removal from office

Question 19

FEDERAL EXECUTIVE POWER

Immunity

Answer 19

President has absolute immunity from civil suits arising from official actions while in office

* No immunity for actions occurring prior to taking office

Question 20

FEDERAL EXECUTIVE POWER

Executive Privilege

Answer 20

Executive privilege protects against disclosure of presidential papers and conversations

* Important govt interests in criminal cases can override the privilege

(e.g. Watergate–presidential documents and phone logs were disclosed for evidentiary purposes, which overrode the privilege)

Question 21

FEDERAL EXECUTIVE POWER Pardon Power

Answer 21

President has the power to pardon those accused or convicted of federal crimes (^{not state crimes}), except in cases of impeachment.

* President may also commute sentences

* Congress cannot limit President’s pardon power

Question 22

FEDERAL EXECUTIVE POWER Foreign Policy: Treaties and Executive Agreements

Answer 22

Article III gives the President authority to make treaties, appoint ambassadors, and act as Commander in Chief of the military

Treaties–Negotiated by the President

• * Become effective upon 2/3 ratification by the Senate, but do not need Senate consent to void
• * Conflicts: If a treaty conflicts with other sources of law, these rules control
  
  • >> Conflicts with state law – Treaty prevails
  • >> Conflicts with federal law – Most recent prevails
  • >> Conflicts with Const. – Const. prevails

Executive Agreements–Agreements reached between the President and foreign heads of state. No congressional approval is required

• * Can be used for any purpose
• >> Conflicts with state law – Exec Agreement prevails

Question 23

FEDERALISM Supremacy Clause

Answer 23

Under the Supremacy Clause, federal laws trump conflicting state and local laws

Express Preemption–If a federal law provides that it is the exclusive authority in a given area, it preempts state and local laws in the area

^{* However, preemption provisions are narrowly construed}

Implied Preemption–If a federal law is silent on preemption, courts will presume a conflicting state law is valid, UNLESS Congress clearly intended to supercede.

• Implied preemption usually occurs in 3 situations:
  
  • Mutual exclusivity: Federal and state laws are mutually exclusive (i.e. complying with both is impossible) ^{>> States can set stricter requirements if compliance with both federal and state law is possible}
  • State law impedes a federal objective
  • Congress evidences clear intent to legislate EXCLUSIVELY and/or preempt state ^{(bankruptcy or immigration)}

Question 24

FEDERALISM

State/Local laws that impact interstate commerce. (“Dormant Commerce Clause” or “Negative Commerce Clause”)

Answer 24

^{State and local laws that affect interstate commerce may be unconstitutional if they are unduly burdensome}

Analysis–Ask if a state/local law or regulation is discriminatory ^{(i.e. does it discriminate against non-state residents and/or favor local economic interests)} and apply either of the following:

>Non-discriminatory state law–Violates DCC if it:

• Burdens interstate commerce, AND
• The burden exceeds any legitimate local benefits produced by the law

>Discriminatory state law:

• Burdens interstate commerce AND
• Is NOT necessary to achieve an important govt purpose ^{(i.e. no reasonable, less discriminatory alternative exists) >> Note: discriminatory state/local laws will almost always}

Question 25

FEDERALISM

Privileges and Immunities and Article IV

Answer 25

P&I Article IV: No state may deny citizens of other states the privileges and immunities it accords its own citizens

• Protects against denial of fundamental rights to non-state citizens ^{(i.e. it is an anti-discrimination provision)}

Analysis - Discriminatory state law–Invalid if:

• Relates to civil liberties or commercial activities
• Is not necessary to achieve important govt interest ^{I.e., State has no substantial justification for the discrimination or less restrictive means are available}
• >> Examples:
  
  • ^{Valid: In-state residents pay lower fees for public golf courses, hunting licenses, camping permits}
  • ^{Invalid: Income tax on non-residents only; limiting bar admission to state residents; different fees for commercial fishing licenses}

Note: Only applies to U.S. citizens!!

14th A P&I–Primarily applies to restrictions on rights to interstate travel, narrowly construed and unlikely to be a correct answer choice

Question 26

FEDERALISM State Taxation of Interstate Commerce

Answer 26

State Taxation of Interstate Commerce: States may only tax interstate commerce activities with a substantial nexus to the state

• A state may not use its tax systems to help in-state businesses or discriminate against interstate commerce
• Taxation of interstate businesses must be fairly apportioned^{>> I.e. A state can only tax the portion of the business connected to the state}

Question 27

FEDERALISM Intergovernmental Immunity

Answer 27

Intergovernmental Immunity: States may not directly tax or regulate fed govt activity

• Incidental taxes are acceptable

>> E.g. States can collect income tax on federal employees working with the state or tax private entities doing business with the fed govt.

Question 28

FEDERALISM Full Faith and Credit Clause

Answer 28

Full Faith & CreditClause: Courts in one state must give full faith & credit to judgments of courts in another state if:

• The prior court had jurisdiction over the parties and subject matter
• Judgment was on the merits
• ^{<em>>> E.g. Judgment not founded on procedural issues</em>}
• Judgment was final

Question 29

PROTECTIONS OF INDIVIDUAL LIBERTIES

Government Action (“State Action) Requirement

Answer 29

Const. applies only to govt action (federal, state or local). Private conduct doesn’t have to comply with the Const. subject to the exceptions below

EXCEPTIONS: Const. will apply to private conduct where:

• Exclusive Public Function–A private entity performs a task traditionally performed by govt (narrow exception)
  
  • >> Arises only if a private entity exclusively operates a govt function ^{(e.g. private prisons, elections, running a town)}
• Significant State Involvement (Entanglement)–Govt affirmatively authorizes or facilitates private conduct
  
  • >> State must affirmatively approve or validate private conduct–permitting it alone is insufficient

Question 30

PROTECTIONS OF INDIVIDUAL LIBERTIES

Bill of Rights: Application to Federal and State Govt

Answer 30

The Bill of Rights only applies directly to the federal govt

• SCOTUS has selectively held specific BOR provisions applicable to the states through incorporation (incorporation doctrine) into the 14th A Due Process Clause
  
  • >> Most BOR provisions are now incorporated

EXCEPTIONS: BOR provisions NOT incorporated into 14th A Due Process Clause:

• ^{3rd A right to not have} soldiers quartered in homes
• ^{5th A right to} grand jury indictment in criminal cases
• ^{7th A right to} jury trial in civil cases
• ^{8th A right} against excessive fines

Reverse Incorporation

• The 14th A Equal Protection Clause does not apply directly to the fed govt, but has been held to apply to the federal govt through the 5th A DP Clause

Question 31

PROTECTIONS OF INDIVIDUAL LIBERTIES

3 Levels of Scrutiny

Answer 31

Rational Basis--A law will be upheld if it rationally related to a legitimate govt purpose

• * Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
• * A law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary
• * BOP = Challenger of the law bears the burden of proof

Intermediate Scrutiny–A law will be upheld if it is substantially related to an important govt purpose

• * Govt goal must be important; courts look at the actual reason the law was enacted
• * BOP = Govt bears the burden of proof

Strict Scrutiny--A law will be upheld of it is necessary to achieve a compelling govt interest

• * Govt must show there are no less restrictive or burdensome means of achieving its goal

Question 32

DUE PROCESS - Procedural Due Process

Answer 32

Procedural Due Process - A fair process ^{(e.g. notice, hearings)} is required for a govt agency to take or deprive a person’s life, liberty or property

Analysis:

Has there been a deprivation of life, liberty or property?

• >> Liberty Deprivation–Loss of a significant freedom of action or freedom provided by Const. or statute ^{(e.g. institutionalization, govt restriction of fundamental rights)}
• >> Property Deprivation–A legitimate claim or entitlement to a benefit under law, which goes unfulfilled and have reasonable expectation to continue receipt

What procedures are required?

• BALANCE
  
  • Importance of the individual interest involved ^{<strong>AND</strong>} Value of procedural safeguards to that interest
  • AGAINST Government Interest^{<em> _{(fiscal or administrative efficiency)}</em>}

Question 33

DUE PROCESS Substantive Due Process

Answer 33

Encompasses both fundamental** and **non-fundamental rights

• * Non-Fundamental Rights–Rational Basis
• * Fundamental Rights–Strict Scrutiny

Substantive DP vs. Equal Protection Clause (EP)

* Similarities–Under both substantive DP and EP, a court reviews the substance of the law, not procedures

* Differences >> Substantive DP–Usually involves laws affecting rights of all persons to engage in some conduct or activity >> EP–Usually involves laws treating certain people or groups differently

Question 34

DUE PROCESS Economic Rights

Answer 34

A rational basis test is used for economic rights, unless the infringement falls under the Contracts Clause or Takings Clause. The Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one’s economic rights)

Question 35

DUE PROCESS

Contracts Clause

Answer 35

States cannot impair contractual duties.

• Applies only to state/local interference with existing contractual obligations, including govt. obligations

Levels of Scrutiny--Different for private vs. public K ‘s

• >> Private K ‘s–Require intermediate-type scrutiny.
  
  • If a law substantially impairs a party’s rights under an existing K, it violates the K Clause unless the law:
    
    • Serves an important legitimate public interest; and
    • Is reasonable and narrowly tailored in promoting that interest
• >> Govt. K ‘s–Require stricter scrutiny.
  
  • If legislation impairs a government contract, the same basic test applies, but is likely to require stricter scrutiny. Especially true contractual burdens are lessened for the state.

Question 36

DUE PROCESS

Ex Post Facto Clause

Answer 36

ONLY APPLIES TO CRIMINAL CASES

A law is an ex post facto law if does ANY of the following

• ^{Criminally punishes conduct that was lawful when done,}
• ^{Increases punishment for a crime after it has been committed,}
• ^{Reduces the burden required to convict a person for a crime after it has been committed}

Civil Cases: DOES NOT APPLY

Question 37

DUE PROCESS Bill of Attainder

Answer 37

A Bill of Attainder is a legislative act that punishes specific individuals without a judicial trial.

^{* E.g. An order to imprison a person without judicial process}

Question 38

DUE PROCESS Takings Clause

Answer 38

The 5th A Takings Clause prohibits govt from taking … private property… for public use… without providing just compensation to the owner and/or occupant.

Has there been taking?

• >> Possessory Taking--Govt confiscation or physical occupation of a property. ^{The amount of property taken is irrelevant}
• >> Regulatory Taking–Govt regulation that leaves no economically viable use for a property.
  
  • A land-use regulation is a “taking” if it denies an owner all reasonable, economically beneficial uses of his land. _{^{Here, the farmer can continue to farm, or he could sell his land, or he could become a real estate developer, or he could begin an industry. There are many uses available to the farmer. The value of the land doubled. Consequently, the least helpful action that he could take is to sue for compensation for a “taking” because no taking has occurred.​}}
  • Factors for determining if a regulatory taking has occurred include:
    
    • Social good promoted by the regulation
    • Loss to Owner
    • Owner’s expectations for his property

Is the taking for Public Use?

• Govt only need to establish reasonable belief* that the taking *will benefit the public ^{very low standard}

Is Just Compensation Paid?

• Measured in terms of loss to the owner (not gain by the govt)

Question 39

Fundamental Rights and the Right to Privacy

Answer 39

Fundamental rights (FR) are treated under both the 5th A; Substantive DP and 14th A EP

^{* Substantive DP–Applies if right is denied to all}

^{* EP–Applies if right is denied to some but not others FR}

Right to Vote

Right to Travel

Right to Privacy–An inferred right that encompasses several rights with varying levels of scrutiny >>

• Strict Scrutiny Review:
  
  • 1) Right to Marry
  • 2) Right to Procreate
  • 3) Rights concerning Family and Children:
  • a) Right to custody of one’s children _{^{A state can create irrefutable presumption that husband is the father of a child}}
  • b) Right to keep family together
  • c) right to control children’s upbringing
  • 4) Right to Contraceptives

Question 40

Fundamental Rights

Right to Abortion

Answer 40

Abortion is a fundamental privacy right

Analysis–Turns on the viability of the fetus

* Viability = When fetus can survive outside the womb

* Pre-Viability–Regulation must not unduly burden abortion

>> States may to prohibit abortion, but may regulate as long as it does not create an undue burden

^{>> Examples: * Undue burden–Spousal Notification}

^{>> Examples: * No Undue Burden– 24-hr waiting period; Partial-birth abortion bans; Parental Consent Requirements}

* Post-Viability–Prohibition on abortion is allowed unless medically necessary to protect the mother’s health

_________________

• ^{Govt has no duty to subsidize abortions or provide them in public hospitals}
• ^{There is no undue burden if the law creates an alternative procedure where a minor goes before a judge and judge can approve, finding 1) in minor’s best interest and 2) minor mature enough to make decision}
• ^{Unconsistutional if anything tied to married (spousal consent or spousal notification)}

Question 41

EQUAL PROTECTION

General Application and Approach

Answer 41

Applies to state/local govts through the 14th Amendment

Applies to the federal govtby incorporation though the 5th Amendment DP Clause

__________________________

Approach to EP:

1) Is there a discriminatory classification? ^{>> To receive heightened scrutiny, a discriminatory classification must be proved}
2) What level of scrutiny applies given the classification?

• >>Suspect Class = SS
• >> Quasi-Suspect Class = IS
• >> All other alleged classifications = RB

3) Does the classification satisfy the proper level of scrutiny?

Question 42

EQUAL PROTECTION

Proving Discriminatory Classification

Answer 42

Classifications must be discriminatory to be reviewed under heightened scrutiny (intermediate or strict scrutiny). There are 3 ways to prove a discriminatory classification:

Law discriminates on its face–By its terms, the law treats classes of people differently

Facially-neutral law Applied in a discriminatory manner–The law does not create a classification by its terms, but does so as applied ^{(e.g. only men arrested under an otherwise valid law)}

• ^{>> Proving Classification–P can demonstrate either:}
  
  • ^{a) Disparate Impact–The law has a discriminatory impact (i.e. it creates a classification), or}
  • ^{b) Disparate Treatment–There is discriminatory intent behind the law}

Discriminatory Motive/Purpose behind the law

• ^{Difficult to prove}
• ^{Demonstrating discriminatory impact alone is not enough; there must be evidence of government’s discriminatory motive}

Question 43

EQUAL PROTECTION EP Standards of Review

Answer 43

Rational Basis

• Alienage, but only if classification:
  
  • a) Relates to the democratic process, or
  • b) Is a congressional action concerning immigration
• All other classifications

Intermediate Scrutiny (Quasi-Suspect Classification)

• Gender
• Non-Marital Children

Strict Scrutiny (Suspect Classification)

• Race
• National Origin
• Alienage
• Right to Travel
• Right to Vote

Question 44

EQUAL PROTECTION Classifications Based on Race OR National Origin

Answer 44

^{Classifications based on <u><strong>race or national origin</strong></u> are suspect classifications requiring <u><strong>strict scrutiny</strong></u>}

Classifications Benefitting Minorities (Affirmative Action)

• * Quotas-- Need clear proof of persistent and readily identifiable discrimination ^{present discrimination}, which cannot be based on general past wrongs. ^{Quotas are unlikely to be upheld}
  
  • ^{​Note: _{only interests that have been recognized are remedying past discrimination and diversity<u> in the limited context of university admissions​</u>}}

^{_{<u>​​</u>}}

• * Admissions–Educational institutions may use race/national origin as a factor in determining admission decisions, but not as a defining criterion ^{>> E.g.<strong> An admission process that awards “points” to some applicants based on race is unconstitutional </strong>}
• * Public School Integration–Public school systems may not assign students to schools on the basis of race to achieve integration

Question 45

EQUAL PROTECTION Alienage Classifications

Answer 45

Classifications based on alienage are suspect classifications requiring review under strict scrutiny, subject to certain exceptions.

Alienage relates to citizenship status

____________________

EXCEPTIONS–Rational Basis applies if the classification is:

• Related to self-govt and the democratic process;
  
  • ^{>> Often arises where job applicants are denied govt employment based on their citizenship status}
  • ^{>> Areas where alienage classifications have been upheld under RB review: * Voting * Serving on a jury * Working as a police officer * Working as a teacher}

OR

• Congressional Law Regulating Immigration
  
  • Congress has plenary powers to regulate immigration
  • Note: Undocumented aliens are not considered a suspect classification

Question 46

EQUAL PROTECTION Gender and Non-Marital Children Classifications

Answer 46

Gender–IS + “exceedingly persuasive justification”

Gender classifications receive IS ^{(i.e. they must be substantially related to an important govt purpose).}

• Additionally, courts often require an “exceedingly persuasive justification” for the classification
• Classifications discriminating against men are usually invalid.
  
  • Some have passed IS, ^{e.g. statutory rape laws applying only o men, all-male military draft}
• ^​Classifications benefitting women:
  
  • 1) Classifications based on stereotypes are impermissible
  • 2) Classifications designed to remedy past discrimination or differences in opportunity will likely be upheld

Non-Marital Children–usually arises with intestacy statues Illegitimacy classifications and receive IS if nonmarital children are treated differently

Question 47

EQUAL PROTECTION Rational Basis Classifications

Answer 47

All classifications not qualifying for SS or IS receive RB review

Examples: * Age * Disability * Wealth * Economics * Sexual Orientation Discrimination [Also alienage classifications arising from congressional regulation of immigration or relating to self-goat and the democratic process]

Question 48

EQUAL PROTECTION

Right to Travel and Right to Vote under EP

Answer 48

Although both the right to travel and right to vote are both fundamental rights that can be analyzed under SDP, they often arise as classification issues requiring EPC analysis

Right to Travel–Srict Scrutiny

• * Usually arises when laws impede movement between states *
• Durational Residency Requirements–Laws requiring some period of in-state residency to qualify for a state benefit
  
  • ^{>> Invalid Residency Requirements: 1-yr residency to receive welfare, subsidized medical care, to vote in state elections}
  • ^{>> Valid Residency Requirements: 30-day residency to vote in state elections; 1-yr residence to get a divorce Right to Vote–SS}

Right to Vote - Strict Scrutiny

• Laws that deny some citizens right to vote
• One person one vote must be met for all state and local elections
  
  • ​For elected bodies, voting districts must be similar in population
• ​At large elections _{^{when all voters vote for all office holders}} = constitutional

Question 49

1st AMENDMENT PROTECTIONS Freedom of Religion

Answer 49

^{Religion is protected under the Free Exercise Clause and the Establishment Clause of the 1st A}

_Free Exercise Clause–_The FEC protects freedom to exercise religion. _Strict scrutiny applies._

• *Limitation–FEC only applies if the purpose of the law is to limit or interfere with religious practice
  
  • >> Laws of general applicability (i.e. not designated to regulate or interfere with religion) are valid ^{* Govt cannot deny benefits to individuals who quit jobs for religious reasons}

^​Establishment Clause- If the govt discriminates against a specific religion or sect ^{(as opposed to religion generally)} the EC applies and strict scrutiny is used.

• * If the govt restricts or burdens religion WITHOUT discriminating against a specific faith or group, the Lemon test applies
  
  • Lemon Test:
    
    • ​Secular PURPOSE behind the act ^{(doesn’t advance nor inhibit religion)}
    • Does not create EXCESSIVE GOVT ENTANGLEMENT with religion

Question 50

1st AMENDMENT PROTECTIONS

Freedom of Association: Membership

Disclosure Restrictions

Answer 50

Freedom of association issues arise when laws prohibit or punish group membership. Strict scrutiny applies.

Laws criminalizing membership–Govt must prove that D:

1) Actively affiliated with a group involved with illegal activities
2) Had knowledge of the group’s illegal activities
3) Acted with specific intent of furthering those activities

Disclosure Requirements–Laws requiring disclosure of group membership must meet SS if disclosure would have a “chilling” effect on the association (i.e. if it would inhibit groups ability or willingness to associate)

Question 51

1st AMENDMENT PROTECTIONS Freedom of Association: Prohibiting Group Discrimination

Answer 51

Prohibitions on group discrimination are unconstitutional only if they interfere with intimate association** or **expressive activities

Intimate Association–Small, intimate groups have absolute freedom of association ^{* E.g. Small groups or clubs, dinner parties}

Expressive Association/Activities–Groups have the right to associate for the purpose of engaging in protected 1st A activities ^{(i.e. activities integral tot the group’s purpose)}

• Usually involves groups formed for excessive*, *non-intimate associative purposes ^{(e.g. NAACP, Bout Scouts, K K K ) >> E.g. The K K K is not required to accept African-American members, as this exclusion is integral to its association and thus protected}

Question 52

1st AMENDMENT PROTECTIONS Free Speech Framework

Answer 52

Free Speech Framework: Determining applicable test/levels of scrutiny. ASK: Does the speech at issue fall within a lesser-protected category of speech (e.g. obscenity, symbolic speech, commercial speech, etc.)?

• >> YES–Apply the appropriate test for that category of lesser-protected speech
• >> NO–Identify whether the speech restriction is content- based or content-neutral to determine applicable scrutiny

Content-BASED Speech--Content-based speech regulations restrict speech based on its subject matter and/or viewpoint (i.e. ideology of message) require SS analysis.

^{>> E.g. Ordinance banning political protests–restricts speech on its subject matter (politics)}

^{>> E.g. City grants rally permit to liberal group but denies a rally permit for a conservative group–restricts speech based on viewpoint}

Content-NEUTRAL Speech--Content-netural regulations restrict the time, place, or manner of the delivery of speech, not its content. These restrictions are analyzed under the public forum doctrine. The applicable scrutiny test depends on whether the speech is in a public or non-public forum

>> Public Forum = Intermediate-type scrutiny

>> Non-Public Forum = Rational Basis-type scrutiny

Question 53

1st AMENDMENT PROTECTIONS Speech in Public Forums

Answer 53

Speech in Public Forums: Public forums are govt property that the govt is constitutionally required to make available for speech (e.g. sidewalks, parks). Regulations must be content-NEUTRAL, if not, SS applies

Restrictions on speech in a public forum–To be upheld, the restriction must:

1. Be content-NEUTRAL (i.e. only regulates time, place or manner)
2. Must be narrowly tailored to serve an important govt purpose
3. Leave open adequate, alternative channels of communication (Does not need to be the least-restrictive alternative)

*Permit fees that vary depending on the type of speech are content-based and unconstitutional

Question 54

1st AMENDMENT PROTECTIONS Speech in Limited/Designated Public Forums

Answer 54

Speech in Limited/Designated Public Forums: Govt properties that the govt open for speech, but can close anytime (e.g. public school facilities for girl scout meetings) are limited/designated public forums. The same rules apply as for public forum restrictions, but only apply when the govt property is open for speech

To be upheld, the restriction must:

• Be content-NEUTRAL (i.e. only regulates time, place or manner); AND
• Must be narrowly tailored to serve an important govt purpose; AND
• Leave open adequate, alternative channels of communication (Does not need to be the least-restrictive alternative)
  
  • When closed for speech or restricted to certain types of speech, analyze regulations the same as for non-public forums

Question 55

1st AMENDMENT PROTECTIONS Speech in Non-Public Forums

Answer 55

Speech in Non-Public Forums: Govt property that can be closed to speech ^{(e.g. military bases, airports, advertising on city buses, sidewalks on post office property, areas outside prisons & jails)} are non-public forums.

The govt can regulate speech if the regulation is:

• Reasonably related to some legitimate purpose, AND
• Viewpoint Neutral

>> Note: Content-neutrality not required; govt can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit speech to only one view

Question 56

1st AMENDMENT PROTECTIONS Speech on Private Property

Answer 56

There is not 1st A right to use private property for speech purposes (e.g. privately owned shopping centers)

Question 57

1st AMENDMENT PROTECTIONS Prior Restraints

Answer 57

Prior Restraints: Prior restraints involve a prohibition on speech (or publication) before it occurs. SS applies.

Identifying Prior Restraints–Look for prevention of expression. Prior restraints prevent expression, whereas other speech restrictions punish expression after it has occurred

Injunctions–Most common type of prior restraint. It is extremely difficult to get an injunction prohibiting speech.

• “Gag orders” against pre-trial publicity almost never allowed
• Note: P buys compel with valid injunction until it is vacated or overturned; P cannot challenge a violated injunction (Collateral Bar Rule)

Permits/Licensing–Govt may require licenses or permits for speech only if there is a reasonable justification for doing so.

• License/permit requirements must be similar to a “rubber stamp” process and must provide procedural safeguards and judicial review for denied permits/licenses
• P can challenge a denial on constitutional grounds, even if violated

Question 58

1st AMENDMENT PROTECTIONS Vagueness

Answer 58

Vagueness: A law is vague if a reasonable person cannot tell whether speech is prohibited or permitted

• E.g. Law prohibiting people from assembling and conducting themselves “in a manner annoying to passersby”–unconstitutionally vague b/c a reasonable person must guess at to what behavior is punishable

Note:“Fighting words” statutes are unconstitutionally vague and overbroad and will not be upheld

Question 59

1st Amendment Protections

Overbreadth

Answer 59

^{A law is overbroad if it regulates substantially more speech than the Const. allows to be regulated}

An overbroad law restricts unprotected speech, but in doing so restricts protected speech

• ^{>> E.g. Law prohibiting all “live entertainment” restricts obscenity (valid), but also prohibits protected speech in concerts or theaters (invalid)}

If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected

• Note: “Fighting words” statutes are unconstitutionally vague and overbroad and will not be upheld

Question 60

1st AMENDMENT PROTECTIONS Symbolic Speech

Answer 60

Symbolic speech refers to expressive or communicative conduct (i.e. conduct intended to convey a message). Govt can regulate symbolic speech if:

Government interest is unrelated to suppression of the message

• >> If the restriction is aimed at speech more than conduct, it is likely unconstitutional
• ​*

^{Regulation furthers} an important govt interest

Impact on speech no greater than necessary to further the important govt interest

• ^Examples:
  
  • ^{* Burning U.S. flag– protected symbolic speech}
  • ^{* Burning a draft card– not protected}
  • ^{* Nude dancing– not protected}

Question 61

LESSER PROTECTED CATEGORIES OF SPEECH

Incitement of Imminent Unlawful Activity

Answer 61

The govt may punish speech if:

• There is a substantial likelihood the speech will bring imminent illegal activity;

AND

• If the speech is aimed at causing imminent illegality

Note: This test is often referred to as the “Clear and Present Danger” test; it is difficult to satisfy; the law must be narrowly tailored

Question 62

LESSER PROTECTED CATEGORIES OF SPEECH

Fighting Words

Answer 62

Govt may punish speech if it it is likely to cause an immediate violent response against the speaker

Note: It is virtually impossible for fighting words statute to be upheld; it will be overbroad, vague, or deemed content-based and fail under SS

Question 63

LESSER PROTECTED CATEGORIES OF SPEECH

Obscenity and; Profanity Regulations

Answer 63

Obscenity & Profanity Regulations:

Zoning--Govt may use zoning to regulate obscenity-type speech or conduct if regulation is designed to combat secondary effects.

• Govt may seize assets of businesses violating obscenity laws
• >> E.g. An ordinance limiting strip clubs to a small city section can be upheld if designed to combat a drop in property values or rise in crime

Pornography–Private possession is not punishable unless it involves child pornography

• Child Pornography–May be punished because they underlying act is illegal (i.e. sex with minors)
  
  • >> Child Pornography = Actual children are depicted
  • >> Adults portraying children is not child pornography

Profanity/Indecent Speech–Generally protected with two exceptions. Profane/indecent speech is punishable if:

• Speech is aired over broadcast media (not cable or internet)
• Speech occurs in public schools

Question 64

LESSER PROTECTED CATEGORIES OF SPEECH

Commercial Speech

Answer 64

Commercial speech is not protected if it is either:

• False, misleading, or deceptive, or
• Illegal or concerns illegal activity
• The govt may regulate unprotected commercial speech

Govt can only regulate protected commercial speech (i.e. not misleading or unlawful) if the regulation:

• Serves a substantial govt interest
• Directly advances that govt interest; AND
• Is narrowly tailored to server that govt interest
• A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive alternative

Question 65

LESSER PROTECTED CATEGORIES OF SPEECH Defamation

Answer 65

Defamation: 1st A considerations arise when defamation involves a public official and/or a matter of public concern

Matter of Public Concern: statements that relate to a community interests or concern, this includes national interests

Public Figure: one who has pervasive fame or sorority or voluntarily assumes a central tole in a particular public matter A public official is a public office holder

If defamation involves a pubic figure, official/and or public concern, P must prove (1) falsity and (2) fault

• Falsity– P must prove the statement was false
• Fault– P must prove D was at fault.
• For a public official or figure the standard is actual malice.
  
  • Actual malice means knowledge of the statements falsity or reckless disregard as to whether it is false.
  • ^{<em>For private figures negligence is the standard.</em>}