Constitutional Law

What are the 4 requirements to establish a CASE and CONTROVERSY?

(1) Standing
(2) Ripe
(3) Not Moot
(4) Not a Political Question

What are 3 requirements to STANDING?

(1) Injury
(2) Causation
(3) Redressability

What must a π show if he is seeking injunctive or declaratory relief in federal court?

Likelihood of future harm.

What is the "best type of standing?"

(1) Personal injury to π

OR, if more than one personal injury

(2) Personal injury in the form of economic loss.

When is 3rd party standing allowed?

(1) π meets all the requirements of standing personally
AND
(2) close relationship between 3rd and π;
OR
(3) 3rd cannot litigate personally;
OR
(4) Organization suing on behalf of member: (a) member standing; (b) germane interest; and (c) availability of member unnecessary

When can an organization sue on behalf of its members?

(1) Members would have standing;
(2) Interest is germane to org's purpose;
AND
(3) Claim and Relief do not require participation of members

What is a "generalized grievance," and how does it effect standing?

Generalized grievance- suing solely as a citizen or as a taxpayer.

Standing cannot be based on a generalized grievance UNLESS the government's spending is in violation of the establishment clause.

2 considerations regarding ripeness?

(1) Hardship without pre-enforcement
AND
(2) Fitness of the issues and the record for judicial review

What are the exceptions of mootness?

(1) capable of repetition yet evading review;
-abortion
(2) voluntary cessation;
-∆ stops
(3) class actions
-so long as at least 1 member's claim is alive

Name some issues that are always dismissed under the Political Question Doctrine?

(1) "Republican form of government"
(2) President's conduct of foreign policy
(3) Impeachment and removal
(4) Partisan gerrymandering
(5) President's use of military

-Issues that can only be resolved by other branches of the government

In what 3 ways can the supreme court hear a case?

(1) Certiorari
(2) 3 judge federal appeal (rare)
(3) Original Jdx

What comes to the Supreme Court via cert?

(1) State Court Cases
(2) Federal Appellate Court Cases

What does the Supreme Court have original jdx over?

(1) Ambassadors, public ministers, and consuls

(2) State is a party

Can a federal court hear cases against states?

NO
Pursuant to the 11th amendment, sovereign immunity.

What does the 11th Amendment prohibit?

(1) suits against states in federal court based on any law
AND
(2) Suits against states in courts or federal agencies when based on federal law

When can a state be sued?

(1) Waiver
(2) 14th amendment violations
(3) Federal Gov as π
(4) Bankruptcy Proceedings (release from state debt)

Does the 11th bar suits against state officers?

NO
A state officer may be sue for
-Injunctive relief
-Money damages

However, no money damages if the state treasury will have to pay the damages.

Will a federal court enjoin state court proceedings?

Typically NO, the court will abstain

HOWEVER, if criminal a proceeding was brought in bad faith, the federal court will enjoin the state court.

Where are the 5 places Congress can find authority to act?

(1) Express or Implied Powers
(2) Necessary and Proper
(3) Taxing and Spending
(4) Section 5 of the 14th
(5) Commerce Power

If a power is not granted to the Federal Government, nor prohibited to the states, who has that power?

The states or the people pursuant to the 10th.

What 4 areas does Congress have express or implied power to act?

MILD

(1) Military
(2) Indian
(3) Land (Federal)
(4) D.C.

What power does the necessary and proper clause give Congress?

The power to use any means not prohibited by the Constitution to carry out its duties.

When does Congress have the power to act for the "general welfare?"

ONLY in relation to taxing and spending.

In what 3 ways can Congress exercise its commerce power?

Channels, Instrumentalities, Substantially Effects

When regulating:

(1) the Channels of;
(2) the Instrumentalities of;
OR
(3) anything that Substantially Effects

Interstate Commerce

What has a "substantial effect" on interstate commerce?

(1) Economic activities in the aggregate (cumulative impact);
OR
(2) Non-economic activities alone (not in the aggregate)

May a Congress compel a state to enforce federal laws?

NO.
The 10th Amendment prohibits Congress from "commandeering" the states.

HOWEVER,
Congress may attach conditions to federal money so long as
(1) the conditions are expressly stated; and
(2) relate to the purpose of the spending.

May Congress expand or create new rights via section 5 of the 14th?

NO.

Congress may only enact laws that prevent or remedy violations of EXISTING rights.

A law that is enacted to prevent or remedy violations of existing rights via section 5 of the 14th must be...

(1) congruent;
AND
(2) proportionate

To the violation.

May Congress delegate its powers?

YES.

Congress has NO limits on its power to delegate legislative powers.

What is a legislative veto?

An unconstitutional attempt to overturn an executive bill w/o bicameralism and/or presentment.

What is a line item veto?

An unconstitutional attempt by the president to sign part and veto part of the same bill. President must sign all or veto all of a bill.

-Congress may not give the president this power.

For Congress to enact law, what 2 elements must be satisfied?

(1) Bicameralism (passage by both House and Senate)
(2) Presentment (given to the Present)

May Congress delegate executive powers?

NO.
Not to itself or its officers.

Executive Treaties
And
Executive Agreements

Treaties:
(1) Require senate approval
(2) Trumps State Law
(3) Ties Federal Law (1st in time prevails)
(4) Trumped by Constitution

Agreements:
(1) Does NOT require senate approval
(2) Trumps State Law
(3) Trumped by Federal Law
(4) Trumped by Constitution

What 3 classes of people does the President appoint?

(1) Ambassadors
(2) Federal Judges
(3) Officers of the US

-All with Senate approval

Congress may vest the appointment of inferior officers in...

(1) The President;
(2) Heads of departments; or
(3) Lower federal courts

-NEVER Congress itself or its officers

What is the difference between an officer and an inferior officer?

Inferior officers can be fired by officers.
Officers can only be removed by the impeachment process.

When can the President's power to remove executive officers be limited?

ONLY by statute IF:

(1) Independence from the President is desirable
AND
(2) The limit is not absolute (may be limited to "good cause")

Who must be removed via impeachment and removal?

(1) President
(2) Vice President
(3) Federal Judges
(4) Officers

The President, Vice President, Federal Judges, and Officers may be impeached and removed for...

(1) Treason
(2) Bribery
OR
(3) High Crimes and Misdemeanors

How does impeachment and removal work?

House Impeaches by majority vote

Senate removes (convicts) by 2/3 vote

The President has civil immunity from what?

All civil suits while in office.

HOWEVER, no immunity for actions that occurred prior to taking office

Is the executive privilege absolute?

NO.

The privilege must yield to other important government interest (e.g., need for evidence at a criminal trial)

Who, and for what, may a President Pardon?

Those
(1) accused or convicted
of
(2) federal crimes

In what 3 ways will a state law be preempted by the Supremacy Clause?

(1) Express preemption

(2) Implied preemption
-Mutually exclusive
-Impedes Federal Intent
-Clear Intent to Control the Area

(3) State Tax of Federal activity

What are the 3 ways that implied preemption can be established?

Mutually Exclusive; Impedes; Enters the field

(1) State and Federal laws are mutually exclusive
(2) State law impeded the achievements of a federal law objective
(3) Congress has a clear intent to preempt (occupies the field)

What does the Dormant Commerce Clause prevent?

State law that unduly burden interstate commerce.

What does the Privileges AND Immunities Clause of Art. IV prevent?

State discrimination against out of state citizens in the area of commerce (right to earn a living) and civil rights.

Citizens v. Non-Citizens

What does the Privileges OR Immunities Clause of the 14th Amendment prevent?

A state law that inhibits potential new citizens from traveling into that state.

New Citizens v. Old Citizens

A business will never sue under what Constitutional Theories?

(1) P & I
(2) P OR I

If a state law does NOT discriminate against out-of-staters, what Constitutional Theory is lost?

The P & I clause.

If a non-discriminatory law is challenged under the DCC, what must be established and by whom?

(1) The challenger
(2) That the burdens exceed the benefits

If a discriminatory law is challenged under the DCC, what must be established and by whom?

(1) The state
(2) That the law is necessary to achieve an important government purpose

Exceptions:
(1) Congressional approval
(2) Market Participant (in state tuition)

If a law (always discriminatory) is challenged under the P & I clause, what must be established and by whom? (Level of Scrutiny)

(1) The state
(2) That the law is necessary to achieve an important government purpose

To prevail on a P & I clause claim, what must be established (5 things)

(1) Discrimination against out-of-staters
(2) Important economic activities OR civil liberties at issue
(3) Challenger is not a Corporation or Alien
(4) Discrimination is not necessary to achieve an important government interest (state's burden)

What are the 3 limits on state taxation?

(1) May not be protectionist (in-state v. out of state)
(2) Activity must have a substantial nexus to the state
(3) Multi state business pay apportioned taxes according to: hours in state, miles driven in state, etc.
(4) Cannot tax federal government.

When does the full faith and credit clause apply (3 requirements)?

JDX, Merits, Final

(1) Judgment from court with jdx (P and SM)
(2) Judgment on the merits
AND
(3) Judgment was final

The Constitution applies to who or what?

The government:
Federal, State, and Local

And Government employees at all levels

Can Congress apply Constitutional norms to private conduct?

YES
Via the
(1) 13th, which applies to the government AND INDIVIDUALS.
OR
(2) Its commerce powers

-NEVER via the 14th

What violates the 13th Amendment?

ONLY involuntary servitude or slavery violates the 13th

HOWEVER, discrimination may violate a statute that prohibits private discrimination passed via the 13th. Discrimination does not violate the 13th directly.

When is private conduct not truly private conduct?

(1) Public function exception
(2) Entanglement exception

Public Function
How do you establish that a private activity is a public function and therefore subject to Constitutional limitations?

The task that the private entity is engaged in is

(1) traditionally and
(2) exclusively
(3) governmental

-Running a town
-Running primary or elections
-NOT utility companies

Entanglement Exception
How do you establish that a private activity is entangled and therefore subject to Constitutional limitations?

The government

(1) Authorized;
(2) Encouraged; or
(3) Facilitates

Specific examples of state action.

(1) Courts may not enforce racially restrictive covenants
(2) Gov leases property to a racially discriminatory restaurant
(3) Gov provides books to a racially discriminatory school
(4) Private entity regulates interscholastic sports within a state

Specific examples of NO state action.

(1) NCAA orders the suspension of a basketball coach at a state university
(2) Private school that is 99% funded by gov funds fires a teacher for her speech
(3) Gov provides a liquor license to a racially discriminatory club

What parts of the Bill of Rights have not been incorporated via the 14th Amendment?

(1) 2nd Amendment right to bear arms
(2) 3rd Amendment right not to have soldiers quartered in your home
(3) 5th Amendment right to grand jury
(4) 7th Amendment right to a jury trial in a civil case
(5) 8th Amendment right against excessive fines

What are the levels of scrutiny and who bears the burden?

(1) Rational Basis Test:
-A law is upheld if it is rationally related to a legitimate government purpose.
*Burden of Proof born by Challenger

(2) Intermediate Scrutiny:
-A law is upheld if it is substantially related to an important governmental purpose.
*Burden of Proof born by the Government

(3) Strict Scrutiny:
-A law is upheld if it is necessary to achieve a compelling state interest and there is no less restrictive alternative.
*Burden of Proof born by Government

Does Congress have the power to regulate state and local employees is regards to wages and vacation time?

YES.
This is within Congress' power over interstate commerce.

What is often a sucker answer in Con Law.

(1) Republican form of Government
(2) 14th Amendment P OR I
(3) Bill of Attainder
(4) Ex Post Fact
(5) Necessary and proper (standing alone)
(6) Rights / Privilege distinction

How will the Supreme Court resolve an issue that violates BOTH equal protection and substantive due process.

The Supreme Court will use Equal Protection.

Is court enforcement of restrictive covenants in a deed state action?

YES.
Therefore, if there are fundamental rights involved, the restrictive covenant must survive strict scrutiny.

If no fundamental rights are involved, the restrictive covenant must be rationally related to a legitimate government interest.

When is substantive due process a weak argument?

When the underlying right is not a fundamental right. Because, rational basis would be applied.

Can Congress violate equal protection?

NO

Equal protection is derived from the 14th amendment, and therefore only applies to the states.

NOTE:
The 5th Amendment is an almost equal counter part that does regulate Congress.

If the FEDERAL government violates someone's individual rights, what cause of action should be brought?

A Due Process violation under the 5th amendment.

Equal Protection DOES NOT apply to the federal government.

If you see similarly situated people who are treated differently, what should you be thinking?

Equal Protection.

What is the level of scrutiny applied to equal protection claims?

Strict; Intermediate; or Rational

Strict if NORA
National Origin, Race, or Alienage
-"Not a citizen"

Intermediate if SIC
Sex, Illegitimacy, or Children of Illegal Aliens

Rational if WADS
Wealth, Age, Disabilities, Sexual Orientation

What is the "Important Government Functions" exception?

It allows rational basis review to be applied to a state law that discriminates against alienage if the law pertains to an important government function such as voting, sitting on a jury, being a police officer, being a teacher, being a probation officer, etc.

What level of scrutiny is applied to a FEDERAL law pertaining to Resident Aliens?

Rational Basis ALWAYS.

If the Federal government gives the States the authority to "ban all tobacco products," may the state ban the advertising of tobacco products?

NO
A federal grant of authority is limited to what the federal government granted.

What is the Lemon Test?

A law that is neutral on its face is constitutional if:

(1) Secular PURPOSE;

(2) Primary EFFECT neither advances nor inhibits religion; &

(3) Does not require excessive government ENTANGLEMENT

"PEE"

What will prevail as between:

Commerce Clause v. State Police Power
Commerce Clause v. 10 Amendment
Commerce Clause v. Health and Safety

The Commerce Clause.

State laws almost always lose against the Commerce Clause.

What is the Hierarchy of Laws?

(1) The Constitution
(2) Treaties and Acts of Congress (1st in time wins)
(3) Executive Agreements and Orders
(4) State Laws

2 rules regarding the military.

(1) President has the power to send troops anywhere
(2) Congress has the power to declare war

What is the difference between procedural and substantive due process?

(1) SDP
Was there an adequate reason to take away the right?

(2) PDP
Was the procedure fair? Typically, whether notice and a hearing was required

What is a "liberty" interest?

A freedom that is provided either by:
(1) The Constitution
OR
(2) Statute

-Written Law

What is required to institutionalize:

(1) an adult
(2) a child
(3) an adult in an emergency situation

(1) Noticing and Hearing
(2) Parent must request and a neutral fact finder (Dr.) must agree
(3) No notice, No hearing

What is a"property" interest?

-Entitlement to a continued receipt of a benefit
-A reasonable expectation that the benefit will continue

How does the following effect the analysis of whether the government has deprived an individual of due process?

(1) Government's negligence
(2) Government's failure to protect from private harms
(3) Government's intent
(4) Emergency Situation

(1) Negligence
A negligent deprivation cannot violate due process.

(2) Failure to act
The government cannot violate DP by failing to protect people from privately inflicted harms

(3) Intent
Due Process is required if the government intended to deprive.

(4) Emergency
Due process is required if the conduct "shocks the conscience"

What is the 3 part balancing test for whether an evidentiary hearing is required for procedural due process?

(1) Interest to individual (the right)
(2) Effectiveness of additional process (increased accuracy)
(3) Government's interest ($)

(Mathews)

Commonly tested areas regarding due process and corresponding requirements.

(1) Welfare:
Pre-termination notice and hearing

(2) Social security disability benefits:
Post-termination hearing

(3) Public School Discipline:
Notice and Opportunity to Explain

(4) Private School Corporeal Punishment:
No DP

(5) Child Custody:
Notice and Hearing

(6) Punitive Damages:
Jury Instructions and Judicial Review
-grossly excessive awards violate DP per se

(7) American Citizen Enemy Combatant:
DP

(8) Prejudgment Attachment:
Notice and Hearing
-Unless Exigency
-Unless property used in criminal activity (even someone else's crime)

What level of scrutiny is applied to laws that hinder "economic liberties?"

Rational Basis Review

-Wage Laws
-Rules regarding the Bar exam

What are the 4 types of takings?

(1) Physical Taking
(2) Regulatory Taking
(3) Conditional Taking
(4) Temporary Taking

When is the government's intrusion of property a taking for a:

(1) Physical Taking
(2) Regulatory Taking
(3) Conditional Taking
(4) Temporary Taking

(1) Physical Taking
Immediately

(2) Regulatory Taking
Total Wipeout
No reasonable economically viable use of the land

(3) Conditional Taking
When the condition is not proportionate to the burden imposed

(4) Temporary Taking
Only when it is unreasonable

What facts lead to a:

(1) Physical Taking
(2) Regulatory Taking
(3) Conditional Taking
(4) Temporary Taking

(1) Physical Taking
Actual confiscation or physical occupation of property

(2) Regulatory Taking
Regulation Burdens Property

(3) Conditional Taking
Quid Pro Quo

(4) Temporary Taking
Temporary denying use

May a property owner challenge a regulation as a taking if the regulation existed prior to his ownership?

YES.

If the government has taken property, what must it establish?

(1) Public Purpose
-Reasonable believe that the taking will benefit the public (broad)

(2) Just Compensation
-Measure by the market value loss to the owner
-NOT the government's benefit

Does the contracts clause limit the Federal Government?

NO
It only applies to the states.

Does the contracts clause limit a state's ability to interfere with all contracts?

NO
-The contracts clause limits a state's interference with EXISTING contracts.

What is the level of scrutiny applied to a government interference with a PRIVATE contract?

Intermediate Scrutiny (modified)

(1) legislation that SUBSTANTIALLY impairs a party's rights under an existing contract

(2) must be REASONABLY and NARROWLY tailored

(3) and promote a LEGITIMATE public interest

What is the level of scrutiny applied to a government interference with a GOVERNMENT contract?

Strict Scrutiny.

Contracts Clause
Level of Scrutiny

(1) Government Ks
(2) Private Ks

(1) Strict
(2) Intermediate (modified)

What are the 9 "Privacy Rights?"

U CUM CHAMP

(1) UPBRINGING of one's child
(2) CUSTODY of one's child
(3) UNITY (family)
(4) MARRY
(5) CONTRACEPTIVES
(6) HOMOSEXUAL activity (private and consensual)
(7) ABORTION
(8) MEDICAL treatment (refusal of)
(9) PROCREATE

What 3 privacy rights do not enjoy strict scrutiny protection?

HAM

(1) HOMOSEXUAL activity (private and consensual)
(2) Abortion
(3) MEDICAL treatment (refusal of)

What are the Pre and Post viability test applied to the right to abortion?

Pre-Viability
-Undue burden test

Post-Viability
-Prohibition allowed UNLESS safety of mother's life at risk

What is NOT an undue burden on a woman's right to an abortion?

(1) 24 hour waiting period
(2) requiring a licensed physician to perform the abortion
(3) prohibition of partial birth abortions
(4) Parental notice and consent IF there are alternative procedures (judge)

Does a state law that creates an irrebuttable presumption that a pregnant woman's husband is the child's father violate the paternal father's right to custody of his child?

NO.
A state may create such a law.

Does a government have a duty to subsidize abortions or to provide abortions in public hospitals?

NO

What IS an undue burden on a woman's right to an abortion?

(1) Requiring spousal consent

Is there a constitutional right to physician assisted suicide?

NO
Rational Basis Review is applied to any law hindering such activity.

What is given strict scrutiny review?

(1) "Privacy Rights" (except "HAM")
(2) Right to travel (P OR I)
(3) Right to vote
(4) Freedom of Speech
(5) Freedom of Association
(6) Freedom of Religion

What issues give rise to the P OR I clause (14th amendment).

(1) Preventing people from moving into a state

(2) Durational Residency Requirements to obtain government benefits

Is a restriction on foreign travel subject to strict scrutiny under the P OR I clause?

NO.
Only Rational Basis Review.

Is there a fundamental right to education?

NO

What types of voting laws are unconstitutional?

(1) Poll Tax
(2) Property Ownership Requirements
(3) Counting uncounted votes without predetermined standards

What types of voting laws are subject to strict scrutiny?

(1) Laws that allow some to vote and not others
(2) The use of race to draw voting lines, even if used to benefit minorities.

Preliminary questions regarding Equal Protection?

(1) What is the Classification
(2) What is the level of Scrutiny
(3) Does the law meet the level of scrutiny

What is the difference between equal protection challenges brought against the federal government and state government?

Federal
-Brought under the DP clause of the 5th amendment

State (or local)
-Brought under the EP clause of the 14th amendment

NOTE:
The analysis is identical, just the source changes.

What are the 2 ways a law can classify?

(1) On its face
(2) Through a discriminatory impact and intent

Who carries the burden of establishing that a racially neutral law has a racially discriminatory impact and intent?

The π must establish both
(1) impact; and
(2) intent

Impact without Intent is not sufficient.

What level of scrutiny is applied to racially discriminatory law that BENEFIT minorities?

Strict Scrutiny.

ALWAYS

What are examples of racially discriminatory law that BENEFIT minorities that have been upheld?

(1) Numerical set-asides (quotas) intended to remedy past discrimination

(2) Educational institutions may use race as 1 factor
-not allowed to add points to admission scores due to race
-cannot set aside spots for minorities
-assigning students to schools based on rase may only be done to remedy past discrimination

What level of scrutiny is applied to gender discriminatory laws?

Intermediate Scrutiny (modified).

-"Exceedingly Persuasive Justification"

How do you analyze a law that encourages gender discrimination by BENEFITING women?

(1) Classifications that benefit women based on stereotypes are UNCONSTITUTIONAL
-Women get alimony, men don't

(2) Laws that are designed to remedy past discrimination are CONSTITUTIONAL
-Social security benefits that are greater to women to remedy past lower wages

What level of scrutiny is applied to a state law that discriminates based on alienage?

Strict Scrutiny

UNLESS
Government Function Exception Applies

What level of scrutiny is applied to a federal law that discriminates based on alienage?

Rational Basis Review

What level of scrutiny is applied to a law that discriminates against the children of undocumented aliens?

Intermediate scrutiny.

What level of scrutiny is applied to a law that discriminates against non-marital children?

Intermediate scrutiny.

Is a law that denies a benefit to all non-marital children, but grants it to marital children constitutional?

NO.

UNLESS
The benefit is to some non-marital children but not other non-marital children
(preventing fraud during probate of a will)

What are the 5 typical non-suspect classification that receive Rational Basis Review?

(1) Age
(2) Disability
(3) Wealth
(4) Economic Regulations
(5) Sexual Orientation

What are the classifications of laws that restrict speech?

(1) Content Based Restrictions
(a) Subject Matter
(b) View Point

(2) Context Based Restrictions
(a) Time
(b) Place
(c) Manner

What level of Scrutiny is applied to:

(1) Content Based Restrictions
(2) Context Based Restrictions

(1) Content Based Restrictions
-Strict Scrutiny

(2) Context Based Restrictions
-Intermediate Scrutiny

Can a court place a gag order on the press to protect a party's right to a fair trial?

NO.
This is an unconstitutional prior restraint.

If a judge places an unconstitutional gag order on the press, does it have any effect?

YES.
Under the "procedural bar" rule, the press must comply with the gag order until it is determined (by declaratory relief) that the order is unconstitutional.

A person is barred from challenging a gag order after he has violated it.

If the government wants to place licensing requirements for speech (parade, demonstration, etc.), what must it demonstrate?

(1) Important reason for the licensing;
(2) Clear criteria to the licensing authority;
(3) No discretion allowed;
and
(4) Procedural safeguards
-judicial review
-prompt determinations

When is a law unconstitutional due to "vagueness?"

When a reasonable person cannot tell what the law prohibits.

-typically applied to laws that restrict speech

When is a law unconstitutional due to "over-breadth?"

When it regulates substantially more that the constitution allows

-typically applied to laws that restrict speech

Are "fighting words" protected?

NO.

HOWEVER,
Laws the prohibit "fighting words" have almost universally been held to be unconstitutional as vague and over-broad.

When can the government regulate conduct that communicates a message?

When the government has

(1) An important interest unrelated to the suppression of the message; and
(2) the impact is no greater than necessary to achieve the purpose.

What types of conduct are constitutionally protected speech?

(1) Cross Burning
-unless done to intimidate or threaten

(2) Flag Burning

(3) Political Party Contributions
-but limits to a single candidate can be limited

What types of conduct are NOT constitutionally protected speech?

(1) Draft card burning

(2) Nude dancing

(3) Political contributions to a single candidate (may be limited)

Does the 1st amendment protect a person's right to anonymous speech?

YES
A law cannot force you to disclose your identity after you make a statement.

What types of speech are not protected or less protected?

(1) Incitement
(2) Fighting Words
(3) Obscenity
(4) Commercial
(5) Defamation

How do you determine if speech is "inciting illegal activity," and therefore not protected?

(1) SUBSTANTIAL likelihood;
(2) of IMMINENT ILLEGAL activity; and
(1) the speech is DIRECTED to CAUSING that activity

How do you determine if speech is "obscenity," and therefore not protected?

(1) appeals to the PRURIENT interest in sex
-determined by local standards

(2) the material is PATENTLY offensive
-determined by the community to which the law applies

(3) as a whole, the material LACKS serious VALUE (artistic, literary, political, or scientific)
-determined by a national standard

May the government use zoning to regulate the location of adult stores?

YES

What must be in Child Porn to make it Child Porn.

Actual Children.

-Adults acting as children does not count
-Computer generated children does not count

May the government punish the private possession of obscene material?

NO

UNLESS
Child Porn

May the government seize the assets of a business involved with violating obscenity laws?

YES.

ALL of them.

Is profane or indecent speech protected?

YES

HOWEVER:

Not over FREE
(1) Radio; or
(2) TV

Is ALL commercial speech protected?

NO, not:

(1) False,
(2) Deceptive, or
(3) Illegal

Commercial Speech

Can the government prevent a professional from advertising or practicing under a trade name (e.g., "Law Corp.").

YES, because a bad professional may use trade names to deceive the public.

May the government prohibit attorney, in-person solicitation of clients for profit?

YES

IF
(1) In-Person; and
(2) For Profit

May the government prohibit accountant, in-person solicitation of clients for profit?

NO

This is protected commercial speech.

What level of scrutiny does Commercial Speech generally receive?

Intermediate scrutiny.

-Must be narrowly tailored
-Need NOT be the least restrictive

Is defamation protected speech?

Some What:

Not Protected IF:

(1) Public Official; Falsity; and Actual Malice
(2) Public Figure; Falsity; and Actual Malice
(3) Private Figure; Public Matter; Falsity; Negligence
(4) Private Figure; Private Matter; (Presumed)

Can the government prevent the truthful reporting of information obtained from the government?

NO, but the government does not have to disclose private information.

Can the government prevent the truthful reporting of information obtained illegally?

NO

UNLESS
The reporter was involved with obtaining the information illegally.

Is speech by a (1) government EE, (2) while on the job, and (3)in the scope of his employment, Protected by the 1st amendment?

NO.

Statements made by government EEs while acting within the scope of their employment and on the job is not protected.

What level of scrutiny must content based restrictions meet in general?

Strict Scrutiny.

What are the 3 classifications of locations for speech?

(1) Public Forum
-Sidewalks
-Parks

(2) Limited Public Forum
-School after hours

(3) Non-Public Forum
-Military base
-Ad space on gov property (bus/bench/building)

Restrictions on public forums must...

(1)
Be subject matter and view point neutral.
OR
Survive strict scrutiny

AND

(2)
Any TPM restriction must survive intermediate scrutiny
-Important government purpose
-Adequate alternatives
-need NOT be the least restrictive alternative

Restrictions on limited public forums must...

If opened to the public, meet the same requirements as public forums.

Be subject matter and view point neutral OR Survive strict scrutiny
AND
Any TPM restriction must survive intermediate scrutiny

What are non-public forums?

(1) Military bases
(2) Areas outside prisons and jails
(3) Ad space on city buses
(4) Sidewalks on Post Office Property
(5) Airports (literature allowed; not solicitations for $)

How can a law prohibit or punish a person for association with a group?

The government must show that the person

(1) Actively affiliated with the group;
(2) knowing of the groups illegal activities; and
(3) the individual had the specific intent to further the illegal activities.

May the government compel a group to disclose its members?

NO.

May the government prohibit a group from discriminating?

YES

UNLESS
(1) Intimate association (dinner party)
OR
(2) Expressive activity (KKK, Nazi Party, etc.)

Can a neutral law of general applicability be challenged under the free exercise clause if it substantially interferes with a religious practice?

NO.

(1) Neutral laws that are
(2) Generally applicable

May not be challenged as a violation of the free exercise clause.

May the government deny benefits to individuals who quit their jobs for religious reasons?

NO

This would force a person to choose between religion and money.

Under the Lemon Test a law does not violate the establishment clause when...

(1) The law has a SECULAR purpose;
(2) The EFFECT of the law neither advances or inhibits religion;
(3) There is no EXCESSIVE entanglement with religion.

If the government has opened a school to non-religious speech, can it prohibit religious speech at that school

NO.

The forum is now an open limited public forum and must be open to all forms of constitutionally protected speech.

Can the government sponsor religious activity at public schools?

NO.

-not prayer
-not silent prayer

When may the government give assistance to parochial schools?

If the assistance is not used for religious instruction.

May the government give vouchers to use in parochial schools?

YES.

When is a state a "market participant," and thus allowed to discriminate against out-of-stater?

When the state, in its own capacity:

(1) buys products
(2) sells products
(3) hires employees
(4) gives subsidies
(5) etc.

To the benefit of residences.

Can a final judgment by a state supreme court on a US Constitutional issue be appealed to a federal district court?

NO.

Appellate review of a matter from a state's highest court is to the Supreme Court only.

May the president unilaterally revoke a treaty?

Yes.

Under his foreign affairs power.

May the president unilaterally create a treaty?

NO.

He must obtain the advise and consent of the Senate (2/3 ratification).

What does the "enabling clause" of the 13th amendment allow Congress to do?

Congress has the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.

Does the "Important Government Functions" exception, which allows a state to discriminate against alienage, apply to the hiring of college professors?

NO.

Because, unlike teachers at the grade school level, professors do not have much of an influence over a college student's understanding of government, the political process, or citizenship.

May a state pass a law requiring a merchant to obtain a license if he desires to sell products manufactured outside of the US within that state's borders?

NO.

Congress has exclusive control over foreign commerce.

May the president refuse to spend money if Congress has expressly mandated that it be spent?

NO

The President must see that the laws are faithfully executed.

What Constitutional power would Congress invoke to entice states to create child custody matters?

Most likely its Taxing and Spending Power, by attaching strings to federally granted money.

The commerce power does not reach this far.

May a city force all candidates to pay a filing fee if they wish to run for public office?

YES, IF:

(1) Reasonable; AND
(2) Waived for indigents

Does the Commerce Clause give congress any power to regulate international commerce?

Yes, some.

Is a law that targets "ritual slaughter" targeted at religion?

YES.

Ritual is an inherently religious word.

Is solicitation for a charitable purpose protected by the 1st amendment?

YES.

An ordinance unduly burdening this form of speech is likely unconstitutional.

Does Congress have the power to force military personnel to retire at a specific age?

YES

Although it must survive a rational basis review due under the 5th Amendment's "equal protection" (due process) clause.

Is a statute that provides a remedy a "property right" for purposes of DP analysis?

YES

Although the legislature may elect not to confer a property interest, it may not constitutionally authorize the deprivation of such an interest once conferred, without appropriate procedural safeguards.

What acts of Congress must be subject to presidential veto to be constitutional?

Any action having the effect of altering the legal rights, duties, and relations of persons, including executive branch officials.

-E.g., a joint resolution of Congress that forces the president to remove troops engaged in hostilities.

Does forcing a person to produce incriminating documents violate that person's 5th amendment right against self incrimination?

NO

Is the freedom of speech violated by forcing a journalist to testify before a state grand jury?

NO

Accordingly, a journalist may not quash a subpoena to testify before a grand jury.

However, watch for self incrimination issues.

Substantive Due Process Analysis

(1) Type of right
-U CUM CHAMP
-Other

(2) Level of scrutiny
-Strict
Upbringing; Contraceptive; family Unity; Custody; Marry; Procreate

-Undue Burden Test
Abortion;

-Unknown
Homosexual sex; rejection or Medical treatment

-Rational basis
All others (typically economic interests)

When to apply STRICT SCRUTINY

(1) Right to marry
(2) Right to procreate
(3) Right to custody of children
(4) Right to keep family together
(5) Right to control child raising
(6) Right to purchase and use contraceptives
(7) Right to travel (EP §VIII)
(8) Right to vote (EP §VIII)
(9) Freedom of speech (1st §IX)
(10) Freedom of association (1st §IX)
(11) Free exercise of religion (1st §IX)
-if law burdening religion is not a neutral law of general applicability)
(12) Equal Protection (National Origin, Race, Alienage)

3 pronged analysis for Presidential Orders

(1) Presidents acts w/ Congressional legislative approval
-Almost limitless power

(2) President acts when Congress is silent
-Allowed so long as it does not strip another branch of its power

(3) President acts against express will of Congress
-Almost guaranteed invalid

President's Powers

(1) Power of Chief Executive
(2) Commander-in-Chief
(3) Pardon Power
(4) Treaty Power
(5) Executive Agreements

When does the Supreme Court have EXCLUSIVE and original jdx?

State v. State

What analysis should be used if there is "malapportionment" of voting districts?

Equal Protection

Look to how the districts have been apportioned and whether they violate the "one person one vote" principal.

NOTE:
Elections at large (no districts) typically do not violate EP, but they may.

What is an "election at large?"

It is an election that is held in a jdx W/O VOTER DISTRICTS

Equal Protection Analysis

(1) State actor?

(2) Is the law facially neutral?

(3) If NO, skip to #6

(4) If YES, π bears the burden of establishing discriminatory Effect and Purpose

(5) If π establishes this, burden shifts to State

(6) Determine whether the classification is based on a suspect, quasi-suspect, or non-suspect class and apply the appropriate level of scrutiny.

Regulatory Taking Factors?

(1) Economic impact
(2) Investment-back expectation of π
(3) Character of regulation

Is there a level of scrutiny applied to takings?

NO

NOTE:
The court used to apply an intermediate scrutiny test, but it no longer performs this test.

When can congress circumvent the 11th amendment and allow a state to be sued in federal court?

For civil or fundamental rights pursuant to §5 of the 14th (enforcement/enabling clause).

NOTE:
Age is NOT a fundamental or a civil right and therefore the states are immune for claims brought pursuant to the ADEA.