MBE Federal Constitutional Law Flashcards
The Judicial Power >
State Immunity
11th Amendment – State Sovereign Immunity bar suits against state govts. in fed. court
STATE IMMUNITY from suit in federal court Under the 11th Amend., fed. courts CANNOT hear lawsuit BROUGHT BY PRIVATE PARTY or foreign government vs. State OR State Official violating state law (state agencies)
- 11th amend. does not bar suits brought by the United States or another state. States must comply with federal regulations just as any other entity or person must do
Exceptions – Suits against State GOV. by private parties/foreign gov. are ALLOWED in fed. court where:
- The State waives sovereign immunity or consents,
- The suit involves the enforcement of 13th, 14th, and 15th Amendment rights and Congress has removed immunity (Congress cannot remove Eleventh Amendment immunity by exercising its Article I powers)
- The suit is brought by fed. govt. or another State
- Bankruptcy proceedings
Suits against State OFFICERS — are ALLOWED in fed. court if the suit involves either:
- Injunctive relief claim for violation of the Constitution or Fed. law, or
- Claim for money damages to be paid by the state officer PERSONALLY (not state treasury)
No immunity
- Suits brought by United States or other state
- Suits against local government (eg, counties, municipalities)
Judicial Power >
Jurisdiction of the Supreme Court
Supreme Court (Judicial) vs. Lower Federal Courts (Legislative)
- Appellate Jurisdiction - Congress may have jurisdiction over the lower federal courts and can create more lower federal courts.
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Jurisdiction of federal courts as limited to cases or controversies
- (i) arising under the Constitution, laws, and treaties of the United States;
- (ii) affecting foreign countries’ ambassadors, public ministers, and consuls;
- (iii) involving admiralty and maritime jurisdiction;
- (iv) when the United States is a party;
- (v) between two or more states, or between a state and citizens of another state;
- (vi) between citizens of different states or between citizens of the same state claiming lands under grants of different states;
- (vii) between a state, or its citizens, and foreign states, citizens, or subjects
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SCOTUS
Original Jurisdiction (Case filed directly in SCOTUS) The U.S. Supreme Court has original jurisdiction over (1) cases involving ambassadors, public ministers, or consuls and (2) cases in which a state is a party.
- Congress has granted lower federal courts concurrent jurisdiction over those cases
- Congress may not expand or limit this jurisdiction. Marbury v. Madison
- Congress cannot send a case directly to SCOTUS or tell SCOTUS what cases they should hear in their on original jurisdiction
EXCLUSIVE Original Jursidiction – controversies between TWO OR MORE STATES is the exclusive jurisdiction of SCOTUS.
Appellate Jurisdiction (Most Cases) The U.S. Supreme Court has appellate jurisdiction over decisions by
- (1) lower federal courts and
- (2) the highest state courts when the decision turns on federal law.
Means –
- writ of certiorari (discretionary review) and
- direct appeal brought under a few specific statutes (e.g., the Voting Rights Act)
Congress Power to Regulate or Make Exceptions to SCOTUS APPELLATE Jurisdiction – Article III grants Congress the power to regulate and make exceptions to SCOTUS’s appellate jurisdiction. But when exercising this almost unlimited power, Congress cannot violate:
- the separation-of-powers doctrine—eg, usurping judicial power to decide cases—or
- other constitutional provisions—eg, giving only men the right to appeal, in violation of the equal protection component of the Fifth Amendment.
State Court Judgments
- The U.S. Supreme Court may use its discretionary appellate jurisdiction and grant a writ of certiorari to review final STATE COURT judgments ONLY if they are BASED ON FEDERAL LAW and the party claiming a federal right is not successful in state court.
- The U.S. Supreme Court has no jurisdiction over, and CANNOT review a judgment based on adequate and independent state grounds.
Adequate and Independent State Grounds (AISG)
- Adequate: state law fully resolves the matter, so the outcome of the case is not affected by federal law
- Independent: state law does not depend on an interpretation of federal law. (e.g., no AISG if state law adopts federal law or follows federal precedent).
- If Basis for Decision is Unclear – the Supreme Court CAN review the federal issue.
Affirm / Remand
- If the Supreme Court agrees with the state court’s decision of federal law, it affirms the decision.
- If the Supreme Court disagrees with the state court’s understanding of the federal issue, it renders its judgment and remands the case to state court, so that the state court can reconsider state law.
Judicial Power >
Concepts of Justiciability
1) STANDING – To have standing, the PLAINTIFF must establish the three elements: injury, causation, and redressability
- Injury-in-fact – actual or imminent harm that is concrete and particularized
- Causation – the injury is fairly traceable to the defendant’s challenged conduct
- Redressability – a favorable judicial decision will likely remedy or prevent the alleged injury
1) 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 may have standing if its members have standing.
2) Causation - not tested frequently
- Defendant’s conduct has caused or will cause injury.
3) Redressability
- Past Injury - Damages
- Future Injury - Injunction
- Past injury does not give automatic standing to seek an injunction for future injury, must show the prospect of future injury
Notes
Federal taxpayers do NOT have standing to challenge government expenditures (only to challenge their own tax liability). UNLESS the taxpayer’s suit
- challenges specific legislation enacted under Congress’s taxing and spending power alleging it violates the establishment clause
Legislative standing A legislator has standing to challenge the constitutionality of government action when that action causes the legislator personal and concrete harm—NOT institutional, abstract harm shared equally by all legislators in that respective body.
- Legislators individually 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.
- Occasional legislature standing, but not legislator standing
Third-party standing (Raising the rights of someone else)
- Generally, the answer is no.
- However, Parties to an exchange or transaction CAN
raise the rights of other parties to that exchange or transaction.
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2) TIMING
Ripeness – concerns prematurity of a case. You must show:
- actual harm or
- an immediate threat of harm
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 reptition, 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).
Judicial Power >
Concepts of Justiciability
(cont’d)
3) Justiciability—Further Issues
i) Advisory Opinions
- may not render advisory opinions on the basis of an abstract or a hypothetical dispute. (constitutionality of proposed legislation.)
- An actual case or controversy must exist.
ii) Declaratory judgments –
- courts are not prohibited from issuing declaratory judgments, however The challenged action must pose a real and immediate danger to a party’s interests for there to be an actual dispute (as opposed to a hypothetical one).
iii) Political Question Doctrine – The political question doctrine applies only to the federal government, not the states. prevents federal courts from hearing a case if it presents:
- issues that are reserved for one of the other branches (executive or legislative)
- issues that lack judicially manageable standards for resolution
Political Question Examples
- 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.)
- Foreign Affairs
- Impeachment Procedures
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4) Abstention – A federal court may abstain from deciding a claim when strong state interests are at stake.
Pullman doctrine
- A court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts.
Younger abstention (pending state proceeding)
- A court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute.
- Only certain civil proceedings qualify for Younger abstention. Enforcement proceedings akin to a prosecution (e.g., termination of parental rights) and Proceedings that further a state court’s ability to perform judicial functions (e.g., contempt)
Legislative Power
Enumerated congressional powers (Article I, Section 8)
Interstate & foreign commerce
Taxing & spending
War, armed forces, militia
Coin & borrow money
Immigration & naturalization
Mail
Copyright & patent laws
Federal courts
District of Columbia
Bankruptcy
Rules concerning captures
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1) COMMERCE (Interstate & Foreign)
- Plenary (ABSOLUTE) Power
- encompasses almost any economic act that could conceivably have some kind of impact, even secondarily, on the stream of interstate commerce
- channels of interstate commerce
- instrumentalities of interstate commerce
- persons/things moving in interstate commerce and
- activities that substantially affect interstate commerce.
INTRAstate commercial activity
- Can even regulate intrastate commercial or economic activity if–when judged in the AGGREGATE of the activity’s entire industry nationwide–has a substantial effect on interstate commerce
Non-economic, non-commercial activity
- can regulate only by actually proving a substantial effect on interstate commerce
2) TAXING & SPENDING
- Congress has broad power to tax and spend if it raises revenue for the general welfare (any public purpose)
- Taxes – Congress can impose indirect taxes (sales tax) so long as they are (1) uniformly applied in every state where the taxed goods are found and (2) reasonably related to revenue production.
- Congress can impose IMPORT TAX but NEVER Export tax on EXPORTED goods or services or on services and activities closely related to the export process. (goods leaving the U.S.)
Conditional federal funding: Conditions must meet all the following criteria:
- clearly stated & unambiguous
- reasonably related to federal interest in funded program
- do not require states to engage in unconstitutional activity
- do not unduly coerce states into accepting
3) Immigration & Naturalization
- Under Article I of the Constitution, Congress has plenary (i.e., exclusive) authority over immigration and naturalization
- Federal laws based on U.S. citizenship are presumptively constitutional and subject to rational basis review.
- However, Citizenship Clause prevents Congress from taking away a person’s citizenship, unless that citizenship was obtained by fraud or in bad faith.
4) Coin and Borrow Money
- Printing Money
5) Federal Lands
- Jurisdiction over national parks and monuments
- Washington DC too
6) Declare War & Defense Powers
Article I, Section 8 enumerates the extremely broad war and defense powers that permit Congress to declare war and to provide for the national defense during wartime and peacetime—e.g.:
- by excluding civilians from sensitive or military areas
- by implementing a military draft and
- by imposing wage, price, and rent controls on the private civilian economy (as seen here).
Military discipline – of U.S. military personnel as well as enemy combatants and enemy civilians. Cannot provide military trial for U.S. civilians
National Guard
- Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.
Writ of Heabeas
- Under the Article I suspension clause, persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ. Applies to noncitizens enemy combatants.
6) Federal Elections
- The Elections Clause of Art. I explicitly empowers Congress to override state laws concerning federal elections. This express provision makes irrelevant general principles of federalism embodied in the “commandeering” cases.
7) Power to enforce the 13th, 14th, and 15th Amendments
Ban on slavery (13th)—
- power to adopt legislation rationally related to eliminating racial discrimination;
- only amendment that authorizes Congress to regulate purely private conduct
Equal protection and due process (14th)—
- permits Congress to pass legislation to enforce equal protection and due process rights (but not to expand those rights or create new ones);
- must be “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end
Voting (15th)—
- prohibits both the state and federal governments from denying any citizen the right to vote based on race, color, or previous condition of servitude;
- Congress cannot treat states differently and thereby impinge on their “equal sovereignty” unless the different treatment is rationally justified by current circumstances
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Necessary & Proper Clause — Congress has auxiliary power under the necessary and proper clause which gives Congress the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government. Congress may not, however, adopt a law that is expressly prohibited by another provision of the constitution.
- This authority constitutes Congress’s implied powers
- Not an independent source of power — the Necessary and Proper Clause must be used in conjunction with another fed. power
- Note — the Necessary and Proper Clause is usually an incorrect answer choice to MBE questions regarding Congress’s power to act b/c the clause is not a source of congressional power on its own
Example – Congress may enact legislation that is necessary and proper to execute its spending power. (Criminalization of the taking of bribes by an official of an entity that receives substantial federal funds is necessary and proper to ensure that such funds are properly spent)
Legislative Power >
Delegation of Powers
Delegation of Powers – 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.
- nondelegable – the power of impeachment and the power to declare war.
Limitations on delegation:
- Congress must provide intelligible standards to define the scope of legislative authority it delegates
- Congress may not delegate executive or judicial powers to itself or its officers (e.g., cannot create commissions that enforce or prosecute violations of law)
Major questions: When an agency adopts regulations with extraordinary economic and political significance, needs clear congressional authorization
- Note — b/c the delegation power is broad, be wary of answer choices regarding excessive delegation as a limitation on congressional authority
Legislative vetoes — Unconstitutional – Congress cannot veto a decision by an agency acting pursuant to delegated power. Must be overturned by enacting a superseding law
- Once Congress delegates its powers (rulemaking/decisionmaking), it cannot interfere with the agencies’ functions unless it again complies with the legislative-action process (bicameralism and presentment). Any attempt to bypass this process is an unconstitutional legislative veto. Essentially they have to pass a new law, they cant reserve the right to interfere with the delegated power.
Line-item veto — Unconstitutional – President cannot veto part of a bill; would be impermissible delegation of power to the President
- President must sign or veto a bill in its entirety
Legislative Branch >
Anti-Commandeering Clause
Congress has broad power to regulate interstate commerce. But the Tenth Amendment limits this power.
- Keep in Mind: States themselves still must comply with federal regulations just as any other entity or person must do.
Anti-Commandeering – Congress CANNOT FORCE states and local governments to:
- ENFORCE a FEDERAL Law or
- ENACT a STATE / LOCAL Law
However, Congress may encourage state legislatures to pass certain laws by, for example, conditioning receipt of certain federal funding on passing laws, via Congress’ spending power.
Conditional federal funding: Congress may place conditions on the receipt of federal funds so long as those conditions comply with the U.S. Constitution. Conditions must meet all the following criteria:
- clearly stated & unambiguous
- reasonably related to federal interest in funded program
- comply with the U.S. Constitution (e.g.,
- do not unduly coerce states into accepting
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Federal Elections
- The Elections Clause of Art. I explicitly empowers Congress to override state laws concerning federal elections. This express provision makes irrelevant general principles of federalism embodied in the “commandeering” cases.
Legislative Power >
POWER TO ENFORCE THE CIVIL WAR AMENDMENTS
13th Amendment
- the Thirteenth Amendment does NOT require state action.
- Rather, it abolishes slavery and its “badges and incidents,” including racial discrimination in PRIVATE transactions like contracts.
- Thirteenth Amendment authorizes Congress with broad power to enact legislation against racial discrimination, whether public OR PRIVATE
14th Amendment – Gives Congress the power to REMEDY violations of INDIVIDUAL rights by the government, but only as those rights have been defined by the Supreme Court
- Congress CANNOT redefine or create new individual constitutional rights by legislation (RFRA example below)
- To be proper remedy, legislation must have “congruence” and “proportionality.” That is, there has to be a reasonable fit between the remedial law enacted by Congress and the constitutional right as defined by the Supreme Court.
Example
- Religious individuals claimed that general laws valid against everyone else could not be enforced against religious objectors unless the government showed a compelling interest.
- Congressed passed RFRA, which declared that religious believers have the right not to obey otherwise valid laws, unless the government can show a compelling interest in enforcing the law against them.
- The Supreme Court struck down RFRA, as it went beyond federal legislative power, because it was not really remedial. It was not narrowly aimed at the kinds of laws the Supreme Court had declared unconstitutional—laws aimed at religion.
- The Court found that it was an attempt to overturn the Court’s decision about what the Constitution did and did not protect. Therefore, RFRA was struck down as beyond the federal legislative power.
15th Amendment
- Congress has the power to ensure there is no racial discrimination in voting.
Executive Power
Domestic
1) Pardon
- Only Federal Crimes
2) Veto
- 10 days to veto for any reason
- can be overridden by congressional veto = 2/3 vote of each house
3) Appointment (need to improve this)
Executive Officers – someone who: (1) holds a continuing public office and (2) has significant discretionary authority to administer, issue, or enforce laws (i.e., executive powers). (officials who make rules, regulations, prosecution)
- All executive officers must be appointed by the President (e.g., cabinet officers, ambassadors, federal judges) and approval by the Senate is required.
- Under this clause, Congress CANNOT appoint executive officers because Congress’s participation in this executive function would violate the separation of powers doctrine.
- Congress cannot hire or fire an executive officer
Inferior Officers — usually those working under presidentially-appointed officers (i.e., can be fired by the appointed officer)
- Congress may, however, delegate the appointment of “inferior” officials to the President alone (i.e., without Senate approval), the heads of executive departments, or the courts.
- Just as Congress cannot hire or fire an executive officer, it cannot give executive power to any inferior officer it can hire or fire
4) Commander-in-Chief
- Military decisions; move/command troops.
- NOT declare war, that’s for Congress.
5) Executive Order
- Becomes law until and unless Congress makes law superseding it. ex: Obama’s border policy.
- The president does not have the authority to direct the actions of persons outside the executive branch unless authorized by an act of Congress
6) Treaties and Executive Agreement
Treaties
- 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.
Executive Agreement
- is an agreement entered into between a foreign government and the executive branch of the United States. 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.
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Congressional Limits on the Executive
1) 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.
2) Impoundment
- 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.
- If a statute gives the President discretion to spend or withhold funds, he may do so.
3) Legislative veto
- When Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution.
- Unconstitutional
4) 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 have clearly delegated that authority to the agency.
Appointment & Removal Powers
Appointment powers
PRESIDENT — can appoint ambassadors, fed. judges, and other high-level executive officers with advice and consent of Senate
Congress — cannot give itself appointment powers. Can vest power to appoint inferior officers in President alone, courts, heads of departments or agencies
- Inferior officers — usually those working under presidentially-appointed officers (i.e., can be fired by the appointed officer)
Removal powers
PRESIDENT — can remove high-level executive officers
- Congress can statutorily limit President’s power to remove all other executive appointees (e.g., can require good cause for removal)
Congress — can only remove executive officers through its impeachment power
- Art. III Judges cannot be removed “during good behavior”
Impeachment
1) House of Representatives can impeach the President, VP, fed. judges, and fed. officers for treason, bribery, or high crimes and misdemeanors — requires majority vote
2) Upon impeachment, trial in the Senate — requires 2/3 vote for removal from office
Immunities
The President
- Absolute immunity from liability for official acts (broadly construed)
- No immunity for acts done prior to taking office
- Executive privilege not to reveal confidential communications with presidential advisers, but that privilege can be outweighed by a specifically demonstrated need in a criminal prosecution (U.S. v. Nixon)
Judges A judge is absolutely immune from civil liability for damages resulting from her judicial acts unless
- it is clear that the judge did not have jurisdiction
- No immunity for non-judicial acts (e.g., employment discrimination).
Legislators The speech or debate clause immunizes members of Congress from criminal and civil liability for official legislative activities—eg, speeches given on the House or Senate floor (Not State Legislators)
- 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.
Federal and State Concurrent Powers
Supremacy Clause – Under Article VI supremacy clause,
- Prioritizes U.S. Constitution, treaties & federal laws over state constitutions & laws
- When Federal Law conflicts with State Law, Federal Law WINS
- The Constitution grants some powers, such as the power to coin money, exclusively to the federal government.
When there is no conflict between Federal and State law:
- State law can be stricter, but can’t be LESS restrictive than the Federal Law (Federal law is the FLOOR)
When there is no Federal law on the subject:
- State can exercise 10th Amendment Police Power to Provide for the health, safety, and welfare of its citizens. There is no Federal Police Power
Fed. Gov. Immune from DIRECT State Tax – The federal government, including its agencies and instrumentalitiesis, are IMMUNE from DIRECT state regulation or taxation. However, states can tax the federal government INDIRECTLY by taxing their federal government’s affiliates. (employees, contractors) This is true even if the cost of the tax is ultimately passed on to the federal government (contractors). As a result, an affiliates must pay these taxes unless:
- (1) Congress granted the affiliate immunity,
- (2) the tax is discriminatory, or
- (3) the tax substantially interferes with the affiliate’s federal purpose or duties.
State Court Challenges Federal Writ of Habeas
- the supremacy clause, prohibits, state courts from challenging the legality of a person being held in federal custody through the issuance of a writ of habeas corpus
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Tenth Amendment – Reserves all powers not assigned to federal government by U.S. Constitution to states/people
- States IMMUNE from federal taxes that DISCRIMINATE against states OR unduly INTERFERE with ESSENTIAL STATE FUNCTIONS
Federal Regulation – As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states.
- For example, a federal minimum wage and overtime statute enacted under the commerce power can be applied to state employees.
- If Congress determines that a state is violating a person’s civil liberties, it can place limits on that state’s activities by using the power of the Fourteenth and Fifteenth Amendments
“Commandeering” limitation – 10th Amend prohibits federal government from requiring states to enact or enforce FEDERAL laws.
- Federal government may encourage states though, through conditional federal funding.
Partial Immunity from direct Federal tax that unduly interfere with State’s essential functions
- States have partial immunity from direct federal taxation that would unduly interfere with the performance of the states’ “sovereign functions of government.”
- Therefore, the federal government generally may not impose significant taxes directly on states for property used for or income received from the state’s performance of basic governmental functions (e.g., public schools, state parks, etc.)
No immunity for Indirect tax
- 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.
Look for 2 statutes in fact pattern
Preemption
The federal government and states can regulate the same subject matter.
1) Federal law preempts (overrides) inconsistent 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.
2) A state law is VOID when a federal law expressly or impliedly preempts it.
Express
- Constitution or federal law explicitly forbids the state from regulating
Implied preemption occurs through:
- field preemption – when Congress intended to completely occupy a particular field by legislating so thoroughly that it left no room for supplementary state regulations (rare)
- DIRECT conflict preemption – when it is impossible or nearly impossible to comply with both federal and state law or
- INDIRECT conflict preemption – when the state law frustrates the purpose of the federal law.
Privileges and Immunities
(State Citizenship)
Affects INDIVIDUALS based on state citizenship; NOT corporations
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The Article IV privileges and immunities clause
A. Comity Clause – prohibits states from SERIOUS discrimination against citizens of another state with respect to fundamental rights or essential activities (e.g., pursuit of employment, transfer of property, access to state courts)
“Serious discrimination” – ECONOMIC discrimination, ability to make money, or FUNDAMENTAL rights
- Travel/reside in state
- Pursue PRIVATE employment
- Practice commercial trade/business
- Own/transfer property
- Seek medical services
- Civil liberties
- Creditor’s rights
- Tax exemptions
Non-serious discrimination (recreational) (non-fundamental right)
- States can discriminate with regard to RECREATIONAL opportunities such as hunting licenses or state park access.
Public Employement
- Public employment MAY have residency requirements.
- Ex: A city hiring only city residents or requiring a certain percentage of city residents on city construction projects.
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B. Fourteenth Amendment—national citizenship – Protects citizens from infringement by the states upon their own citizens’ privileges or immunities of national citizenship
- Includes the rights to travel interstate, vote for national offices, enter public lands, and peaceably assemble
- This provision is seldom successfully invoked; the rights are redundant to rights provided elsewhere in the Constitution; in practice, applies only to the right to travel
Dormant Commerce Clause
Protects BOTH out-of-state BUSINESSES and INDIVIDUALS
The Article I commerce clause empowers Congress to regulate interstate commerce. It also carries a negative implication (i.e., the dormant commerce clause) which limits the power of the states to legislate in ways that impact interstate commerce.
The Dormant commerce clause PROHIBITS STATES and LOCALITIES from
- (1) DISCRIMINATING against out-of-state commerce or
- (2) UNDULY BURDENING interstate commerce
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APPROACH
1) a DISCRIMINATORY state law against OUT-OF-STATE commerce will be deemed UNCONSTITUTIONAL UNLESS:
- the law furthers an IMPORTANT, NONECONOMIC state interest (e.g., health, safety) and
- there is NO reasonable, nondiscriminatory ALTERNATIVE to achieve that interest.
2) UNDULY BURDENS interstate commerce
- a nondiscriminatory state law is VALID, UNLESS the challenging party shows that the law’s burden on interstate commerce clearly exceeds its local benefits
3) The regulation must not apply to wholly extraterritorial activity
- A state may not regulate conduct occurring wholly beyond its borders.
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More Exceptions — State can discriminate when:
- It is necessary to an important state interest — i.e., furthers an important, non-economic state interest and no reasonable alternatives are available
- State is market participant — state can favor its own citizens in buying or selling products, hiring labor, giving subsidies, etc. (E.g., tuition discounts at STATE universities to in-state residents)
- Traditional govt. function — state can discriminate against non-residents if law involves performance of traditional govt. functions (eg, law enforcement, waste disposal)
- Congress approves — state can burden insterstate commerce where Congress has unmistakenly granted permission (BE CAREFUL: It may still violate other constitutional provisions; e.g., 14th Amend. Equal Protection)
State Action & Procedural DP
State Action Doctrine – under the state-action doctrine, a private actor is considered a government actor (and bound by the Constitution) when:
- the private actor performs a traditional and exclusive government function (e.g., elections) or
- the government is significantly involved in the private actor’s activities. (funding or licensing NOT ENOUGH).
Significant Involvement
- Government & private actor have mutually beneficial relationship (eg, joint activity or venture)
- Government creates nexus by affirmatively facilitating or authorizing private action (eg, police officer acting under color of law)
- Government is pervasively intertwined in private entity’s management or control
Unclear State Action – Most state action is clear, but not always. Government cannot be significantly involved in private discrimination:
- Government cannot facilitate private discrimination.
- Government cannot profit from private discrimination.
- Government cannot enforce a private agreement to discriminate.
- But, government is not required to prevent private discrimination.
Anti-Discrimination Statutes
- State action is irrelevant if there is anti discrimination legislation. (private conduct)
Equal Protection
(cont’d)
NOTES
A) Race, Alienage, National Origin – laws that disadvantage minorities will be struck down.
- Discriminatory INTENT is required
- not enough to show a disproportionate impact
1) Discriminatory Intent: A law can intentionally discriminate:
- on its face – the language of the law distinguishes between different classes (intent presumed)
- in its application – a facially neutral law is purposefully applied differently to different classes or
- in its motive – an otherwise neutral law was enacted to disproportionately impact a protected class.
2) Affirmative Action – Triggers Strict Scrutiny. Requires COMPELLING interest.
- SPECIFIC past discrimination: Affirmative action is VALID when it corrects SPECIFIC past discrimination by the specific department or agency now engaged in affirmative action.
B) Gender, Legitimacy
Gender
- 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 – laws are almost always invalid, especially if punitive in nature.
C) Everyone Else
Age
- Age discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under the Equal Protection Clause.
Wealth
- Wealth is not a suspect or quasi-suspect classification
- State laws that discriminate against individuals based on wealth are generally subject to RATIONAL basis scrutiny.
- HOWEVER, STRICT SCRUTINY will be used when a state law prohibits the exercise of a FUNDAMENTAL right based on an individual’s wealth.
- Government has to waive filing fees for indigents when charging the fees would deny a fundamental right.
- Examples: Filing fees for Divorce; transcript for appeal of a criminal conviction; transcript for appeal of the termination of parental rights
Sexual Orientation
- 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.
Takings
Fifth Amendment takings applied to the states through the Fourteenth Amendment
RULE: Private property shall not be taken for PUBLIC USE without JUST COMPENSATION
- Public use (low standard) — 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.
- Property — ALL TYPES of property. Not only land and other real property, but also tangible personal property as well as intangible property, such as contract and patent rights and trade secrets.
- Property Interest — In addition to the transfer of a fee simple interest in property, a taking may involve an easement, leasehold interest, or a lien.
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3-part analysis — to determine if a taking is constitutional, ask:
1) Has there been a taking? — two types of takings:
Possessory taking — govt. takes or occupies physical property
- Govt. may take private property for private development
- If the government physically occupies a private owner’s property, even a tiny portion, then a TAKING has occurred and it owes just compensation.
- Possession or permanent physical invasion of property
Regulatory taking — govt. action that adversely affects property value; whether taking occurs depends on extent of economic interference:
- Denial of ALL economic value = TAKING; requires compensation
- Denial of nearly all value — depends on the social goals promoted, diminution in value to the owner, and interference with owner’s investment expectations
2) Is the taking for public use? — taking is for public use if govt. has a reasonable belief the taking will benefit the public (low standard)
- Use will be viewed as benefitting public as long as it is rationally related to some legitimate public purpose which includes aesthetic and environmental concerns
3) Is just compensation paid? — measured in terms of loss to owner
Measured by fair market value of property at time of taking
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Exaction – occurs when a local government conditions the issuance of a building/development permit on a landowner’s promise to dedicate part of the property for public use. Amounts to a TAKING requiring just compensation UNLESS the GOV’T establishes:
- an essential nexus – the imposed condition SUBSTANTIALLY advances a LEGITIMATE government interestand
- rough proportionality – individualized and quantifiable findings show that the proposed development’s impact on the community is roughly proportional to the imposed condition’s impact on the landowner.
Destruction
- Destruction of property or property interest (eg, easements, liens) – the government generally must provide the owner just compensation at the time of the taking.
- EXCEPTION – Public Peril Exception - Just compensation is NOT required when the government destroys private property in response to a public peril.
Mere Regulation
- If there is a mere regulation on property, compensation is NOT REQUIRED, even if the regulation reduces the value of the property.
- 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.
Economic Impact
- An adverse economic impact on your property from the government’s actions does not necessarily mean there has been a taking
- (e.g., a new prison built next door to a beautiful, countryside home)
Individual Rights >
Freedom of Speech
TYPES of FORUMS
1) Public Forums
- Traditional public forum is a place historically reserved for speech activities (e.g., streets, parks, and public sidewalks around public buildings (but not airports)).
- Designated public forum a place the government has opened for free speech activities (e.g., a civic auditorium that rents to the public).
2) Non-public forums
- includes all kinds of government property that is not a public forum (e.g., government offices, jails, power plants, military bases, etc.).
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1) Content BASED: Government regulating the WORDS/MESSAGE that we are saying. Complete shut down based on the substance of what the speech is communicating.
- Strict Scrutiny - NECESSARY to achieve COMPELLING Interest
- Usually STRUCK DOWN
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2) Content NEUTRAL: Government regulating the TIME, PLACE, and MANNER in which speech happens. Not trying to stop the substance of the message. Must be content neutral on its face and as applied. Also, must not allow executive discretion.
PUBLIC Forum (Traditional/Designated) – INTERMEDIATE SCRUTINY
- (1) Must be NARROWLY tailored to serve a SUBSTANTIAL government interest and
- (2) Must leave open ample ALTERNATIVE channels of communication.
NON-Public Forum – RATIONAL BASIS REVIEW
- Any reasonable regulation of speech will be upheld
- Content-BASED regulations PERMITTED if viewpoint-neutral
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Vagueness and Overbreadth
- Vague laws are ones that give no clear notice of what is prohibited and thus violate due process.
- 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.
Prior Restraints– a regulation of speech that occurs in advance of its expression. Prior restraints are generally presumed to be unconstitutional.
- The burden is on the government to prove that the material to be censored is NOT protected speech.
- Prior restraint must be the only way to accomplish a goal.
Corporations have the same First Amendment right to speak as individuals
Freedom of Expression
(Content Based Restrictions on Speech) >
Unprotected and Less Protected Expression
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
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B) Commercial Speech (e.g. advertisements)
1) POTECTED – If speech NOT misleading
- INTERMEDIATE SCRUTINY (no greater than necessary)
- Regulation of commercial speech must directly advance a SUBSTANTIAL government interest and be narrowly tailored to that interest.
2) UNPROTECTED – If speech is misleading or unlawful
- Prohibited. No First Amendment Protection
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C) UNPROTECTED Speech – mnemonic: FIDO
- Fighting words
- Incitement
- Defamation
- Obscenity
Certain categories of UNPROTECTED speech, such as FIDO, have historically been subject to greater government regulation without running afoul of the Constitution
- Note: Violence is protected speech (violent video games or ads)
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Obscenity – This determination is made by the Court, not the jury, and it is made according to a national standard, not a local one.
- SEXY – Must be erotic; appeal to the prurient interest. (Gore and violence are not legally obscene).
- 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. (Tax on films displaying frontal nudity. Not a valid law because frontal nudity is not a good enough standard.)
- Serious Value – The material must lack serious value. If material has serious value (artistic, scientific, educational, or political), it cannot be held legally obscene.
Notes
- 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.
Incitement
- Speech is not protected if it is an incitement to immediate violence.
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.
- Fighting words are NOT protected speech, HOWEVER all fighting words statutes on the bar exam are unconstitutionally vague and/or overbroiad (e.g., laws against “hate speech”).
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 of knowing or reckless falsity.
- private Plaintiffs can recover on proof of negligent falsity
Mnemonic
- Correct = Compelling – Strict
- Standards = Substantial – Intermediate
- Lately = Legitimate – Rational
