Critical Pass - Con Law
Federal Judicial Power
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A case must be justiciable to be heard in fed. court, which means there must be a case or controversy presented
- To determine whether a case or controversy exists, the case must satisfy requirements for:
- Standing
- Ripeness
- Mootness
- Political question doctrine
See cards 2-5 on Justiciability
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A party must have a concrete interest in the outcome of a claim to have the claim heard in fed. court
Requirements:
- Injury — P must have suffered some injury or show a likelihood of imminent injury
- 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 a 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 (see card 51)
Congress — cannot automatically confer standing, but can create new rights that, if violated, may give rise to standing
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Third-party standing — a P with standing may assert the rights of a third party where P has suffered injury and either:
- P’s injury adversely affects his relationship with third parties
- E.g., bar owner could assert underage males’ rights in challenging ban on beer sales to underage males
- Injured party is unlikely or unable to assert his own rights
- E.g., association could challenge law requiring disclosure of member identities b/c members could not challenge law directly without revealing their identities
Organizational standing — organizations always have standing if the injury is to the organization itself
- Suits on behalf of members — organizations may sue on members’ behalf if:
- Injury to the members that would give members standing to sue individually;
- Injury is related to the organization’s purpose; and
- Neither claim nor relief requires participation of individual members
To be justiciable in fed. court, a case must contain a ripe claim and a live controversy (i.e., it cannot be moot)
Ripeness — Dispute needs to be matured sufficiently to warrant a decision
- P is not entitled to review of a law or govt. act before it has been effectuated
Mootness — a live controversy must exist at all stages of review
- If circumstances causing P’s harm cease to exist after P files suit, the case must be dismissed as moot
- Exceptions:
- Wrongs capable of repetition but evading review
- Arises where injury ceases before complete litigation of the claim, but P can reasonably expect to be subject to the same harm in the future
- E.g., a disabled bar examinee seeks an injunction b/c of denied accommodations and can’t take the exam b/c it occurs before his case is heard; not moot b/c he will need to take the bar exam again
- Voluntary cessation by D — D has ceased the acts giving rise to P’s suit, but can resume them at any time
- Class action lawsuits — only one member of the class must have an ongoing injury
- Wrongs capable of repetition but evading review
Fed. courts will not adjudicate certain constitutional issues that constitute political questions
Political questions involve issues that:
- Const. commits to another branch of govt. (i.e., not the judiciary), or
- Are inherently incapable of judicial resolution or enforcement
Common political questions deemed non-justiciable:
- Actions under the “republican form of government” clause
- Challenges to the conduct of foreign policy
- Challenges to impeachment and removal proceedings
Non-political questions deemed justiciable:
- Production of presidential papers/communications
- Validity of a fed. statute (even if case involves dispute between branches of the fed. govt. regarding foreign affairs)
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Original jurisdiction — Under Art. III, Supreme Court has original jx over suits between states and cases involving foreign ambassadors and other foreign ministers; such cases must be filed in fed. court
- Exception — suits between states must be filed in Supreme Court
- Congress cannot expand Court’s original jx to other types of cases
Methods of Supreme Court review:
- Discretionary review — most cases get to the U.S. Supreme Court by writ of certiorari; the Court then decides whether to grant review
- Mandatory review — the Court must take appeals from three-judge district court panels regarding injunctive relief
- This bypasses the courts of appeal
Final judgment requirement — Supreme Court only hears cases on review if there has been a final judgment of a lower fed. court or a state’s highest court
- Congress may limit Court’s appellate jx to certain cases under Art. III
State court decisions — Supreme Court cannot review a state court decision that rested on an independent, adequate state law ground
- I.e., if the state decision is based on fed. and state law, the Supreme Court will not grant review unless the decision cannot stand on the state grounds alone
The 11th Amend. and the related doctrine of sovereign immunity bar suits against state govts. in fed. court
- Under the 11th Amend., fed. courts cannot hear claims from a private party or foreign govt. against a state govt.
- Sovereign immunity bars suits against states in state court
Exceptions — suits against state govts. are allowed in fed. court where:
- The state waives sovereign immunity or consents,
- The suit involves the enforcement of laws under section 5 of the 14th Amend. and Congress has removed immunity,
- The fed. govt. brings the suit, or
- Bankruptcy proceedings
Suits against state officers — can be brought in fed. court if the suit involves either:
- Injunctive relief claim for violation of the Const. or fed. law, or
- Claim for money damages to be paid by the state officer personally
Federal Legislative Powers
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Art. I of the Const. provides most of Congress’s powers, primarily:
- Taxing and spending (see card 9)
- Regulating commerce (see card 10)
- Establishing uniform naturalization rules and bankruptcy laws
- Raising and supporting military
Executing laws — executive branch is obligated to execute laws passed by Congress
Speech or Debate Clause — members of Congress have criminal and civil immunity for “legislative acts”
- Applies to activities and documents essential to legislative duties
Necessary & Proper Clause — enables Congress to take any action not constitutionally prohibited to carry out its express powers
- 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
See cards 9-12 on other legislative powers
Taxing & spending power — 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 a question concerns taxing, spending, or an area within Congress’s limited police power (military, Indian reservations, fed. land, D.C.)
- Taxes must reasonably relate to revenue production (a low threshold)
Penalties as taxes — calling a measure a “penalty” rather than a “tax” is valid if it behaves similarly to a tax (e.g., ACA individual mandate)
Regulations — Congress can tax to achieve a regulatory effect if:
- 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)
Regulatory spending — Congress can create a regulatory effect by placing conditions on its spending as long as it is not overly coercive
- See Card 11 - 10th Amend. Limitations on Congressional Power
Police power — Congress has no general police power, except for legislation concerning:
- Military
- Indian reservations
- Land — i.e., fed. land or territories
- District of Columbia
The Commerce Clause gives Congress authority to regulate interstate commerce
- Power to regulate intrastate commerce depends on the nature of the activity (economic vs. non-economic)
Interstate commerce — between states
- Congress may regulate channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce
- Includes persons and things in interstate commerce
- Note — broad power; beware of answers suggesting Congress has acted beyond its commerce power concerning interstate activity
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
- Non-economic activities — Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce (tougher burden to satisfy)
Dormant Commerce Clause — limits state laws burdening interstate commerce (i.e., interfering with Congress’s commerce power)
- See Card 17 - Dormant Commerce Clause
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Under the 10th Amendment, all powers not granted to the fed. govt., nor prohibited to the states, are reserved to the states
- Limits Congress’s ability to regulate and/or tax states alone—anti-commandeering principle
E.g., Congress cannot commandeer states by requiring them to enact laws or administer fed. law
- Exception— civil rights; Congress may restrict state activities that violate civil liberties
- Dual application — regulations applying to both public and private sector are usually valid (e.g., fed. minimum 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 maintaining a minimum drinking age of 21
- Requirements:
- Condition must be expressly stated;
- Condition must relate to the purpose of the law at issue; and
- Condition cannot be unduly coercive
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
- 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., Congress cannot create commissions that enforce or prosecute violations of law)
- Major questions: When an agency adopts regulations with wide-sweeping economic and political significance, need clear congressional authorization and history or asserting such power
- Note — b/c the delegation power is broad, be wary of answer choices regarding excessive delegation as a limitation on congressional authority
Legislative & line-item vetoes — unconstitutional
- Legislative veto — Congress cannot veto a decision by an agency acting pursuant to delegated power
- Must be overturned by enacting a superseding law
- Line-item veto — 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
Federal Executive Power
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Appointment powers
- President — can appoint ambassadors, fed. judges, and other high-level officers with advice and consent of Senate
- Congress — cannot give itself appointment powers
- Can vest power to appoint inferior officers in President, 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 at will, high-level, purely executive officers and some heads of independent agencies (if sole director & exercises executive power)
- 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
- House of Representatives can impeach the President, VP, fed. judges, and fed. officers for treason, bribery, or high crimes and misdemeanors — requires majority vote
- Upon impeachment, trial in the Senate — requires 2/3 vote for removal from office
Immunity — President enjoys immunity from civil and criminal suits
- Absolute immunity from civil suits arising from official actions taken while in office
- Absolute immunity from criminal suits for actions within their conclusive and preclusive authority and a presumption of immunity for all other official acts taken while in office and after
- No immunity for unofficial acts
- No immunity for actions occurring prior to taking office
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)
- Not applicable to state criminal subpoenas of President's personal records
Pardon power — President has the power to pardon those accused or convicted of fed. crimes (not state crimes)
- Exception — President cannot pardon someone for convictions leading to impeachment
- President may also commute sentences
- Congress cannot limit President’s pardon power
Article II gives the President authority to make treaties, appoint ambassadors, and act as Commander in Chief of the military
Treaties — agreements between the U.S. and foreign countries negotiated by the President
- Become effective upon ratification by 2/3 of the Senate
- Conflicts — if a treaty conflicts with other sources of law, these rules control:
- Conflicts with state law — treaty prevails
- Conflicts with fed. law — most recent prevails
- Conflicts with the Const. — Const. prevails
Executive agreements — agreements reached between the President and foreign heads of state
- Can be used for any purpose
- No congressional approval is required
- Conflicts — executive agreements only prevail over conflicting state laws
Foreign affairs, generally — though Congress has some power regarding foreign affairs (e.g., to declare war), the President alone has authority to represent the U.S. in foreign affairs
- Note — beware of answer choices in which another branch attempts to direct U.S. foreign representatives (e.g., ambassadors)
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Federalism
Under the Supremacy Clause, fed. laws trump conflicting state and local laws
Express preemption — if a fed. law provides that it is the exclusive authority in a given area, it preempts state and local laws in that area
- However, preemption provisions are narrowly construed
Implied preemption — if a fed. law is silent on preemption, it implicitly preempts state law in three situations:
- Mutual exclusivity — fed. and state laws are mutually exclusive (i.e., complying with both is impossible)
- States can set stricter requirements if compliance with both fed. and state laws is possible
- State law impedes a fed. objective
- Congress evidences a clear intent to legislate exclusively and/or preempt state law
- E.g., immigration and bankruptcy law
- If a state law doesn’t run afoul of any of the above three situations, it is likely valid under the Supremacy Clause
State constitutions — may provide broader rights/protections than fed. Const. but may not provide lesser protections that conflict with scope of fed. Const. rights/protections
Congress has broad commerce power; where Congress has not acted, state and local laws may regulate local aspects of interstate commerce if the regulation is neither discriminatory nor unduly burdensome
Test — a state/local law regulating interstate commerce is invalid if it:
- Discriminates against out-of-state competition,
- Unduly burdens interstate commerce, or
- Regulates wholly out-of-state activity
Examples — the following violate the DCC:
- Regulations protecting local businesses or requiring local operations
- Regulations limiting access to in-state products
Exceptions — state law burdening interstate commerce is valid if either:
- 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
Congress approves — state can burden insterstate commerce where Congress has unmistakenly granted permission
See Card 19 - State Taxation of Interstate Commerce
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States may not discriminate against non-state residents
- Arises if a state law is intentionally protectionist and concerns rights relating to important commercial activities
- I.e., look for situations where a state intentionally protects its citizens by discriminating against non-state residents
- Note — only protects citizens; corporations and aliens are not citizens for purposes of the Privileges & Immunities Clause
Analysis — discriminatory state law will be invalid if it:
- Relates to civil liberties or commercial activities; and
- Is not necessary to achieve an important govt. interest
- I.e., state law is intentionally protectionist in nature, there is no substantial justification for the discrimination, or less restrictive means are available
Examples:
- Valid: law requiring higher fees for non-state residents at public golf courses; higher fees for hunting licenses for non-state residents, etc.
- Invalid: income tax on non-residents only; limiting bar admission to state residents; different fees for commercial fishing licenses
14th Amend. Privileges or Immunities Clause — primarily applies to restrictions on rights to interstate travel; narrowly construed and unlikely to be a correct answer choice
State taxes must have a substantial connection to the state and may not tax in a way that discriminates against interstate commerce
- A state may not use its tax systems to help in-state businesses or discriminate against interstate commerce (see card 17)
Analysis — does the tax discriminate against interstate commerce?
- Yes — invalid; violates Dormant Commerce Clause
- No — does the burden placed on interstate commerce outweigh its benefits to the state? Three requirements:
- Substantial nexus — tax must have a substantial nexus to the taxing state (i.e., item taxed is based on significant in-state activity)
- Fair apportionment — tax must be fairly apportioned, (i.e., state can only tax the portion of the activity connected to the state)
- Fair relationship — tax must be fairly related to services or benefits provided by the state (i.e., tax must be fairly related to some govt. service or benefit)
Intergovernmental immunity — states may not directly tax or regulate fed. govt. property or activities without consent of Congress
Exception — indirect, non-discriminatory taxes are valid if they do not unreasonably burden fed. govt. (e.g., state income tax on fed. employee working in the state is OK b/c not a direct tax on fed. govt.)
Full Faith & Credit Clause of the Constitution
- Certain state court judgments must be recognized and enforced in other states as a matter of right
- E.g., a party who loses case in New York generally can’t relitigate case in New Jersey b/c New Jersey courts are bound by New York ruling
- Under implementing federal statute, Full Faith & Credit Clause is extended to federal courts
- Recognition of judgments is required between state and federal courts and between federal courts
Three requirements for full faith and credit to apply:
- Court that rendered judgment had jurisdiction over the parties and subject matter;
- Judgment was on the merits (i.e., judgment must involve the substance of the plaintiff's claim); and
- Judgment was final
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Protection of Individual Liberties
Const. applies only to govt. action (fed., state, or local)
- Private conduct does not have to comply with Const., subject to the below exceptions
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)
- Significant state involvement (entanglement) — govt. affirmatively authorizes or facilitates private conduct
- State must affirmatively approve or validate private conduct — permitting it alone is insufficient
- Examples of state action — court enforces a racially restrictive covenant; state provides books to private schools that racially discriminate
- Examples of no state action — govt. grants liquor license to racially discriminatory private club; private school receiving govt. funds fires a teacher over speech
Note — Congress may indirectly regulate private conduct through the Commerce Clause (if it affects interstate commerce) or through the 13th Amend. (enabling Congress to pass legislation enforcing the 13th Amend. ban on slavery) (see card 23)
The Bill of Rights (BoR) only applies directly to the fed. govt.
- Certain provisions of the BoR apply to state and local govts. through the incorporation doctrine
- Incorporation — the Supreme Court has held specific BoR provisions applicable to the states through incorporation into the 14th Amend. Due Process (DP) Clause
- Most BoR provisions are now incorporated
Exceptions — certain provisions of the BoR are not incorporated by the 14th Amend. to states, including:
- 3rd Amend. right not to have soldiers quartered in homes
- 5th Amend. right to grand jury indictment in criminal cases
- 7th Amend. right to jury trial in civil cases
Reverse incorporation — 14th Amend. Equal Protection Clause does not apply directly to the fed. govt., but has been held to apply to the fed. govt. through the 5th Amend. DP Clause
- See cards 32-38 on Equal Protection
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The 13th, 14th, and 15th Amendments each contain an enabling clause authorizing Congress to adopt appropriate legislation to enforce the rights these Amendments guarantee
13th Amend. — prohibition on slavery and involuntary servitude
- Congress can adopt legislation prohibiting almost any private racial discrimination that constitutes a “badge or incident of slavery”
- E.g., Congress can pass a law prohibiting employers from discriminating in hiring on the basis of race
- No state action requirement — 13th Amend. applies to private action by its terms
14th Amend. — prohibits states from depriving any person of life, liberty, or property without due process and equal protection
- Congress can adopt legislation to enforce rights and guarantees, but may not expand existing, or create new, constitutional rights
- Requirements — law passed pursuant to 14th Amend. must:
- Point to a history and pattern of state violation of rights; and
- Be proportional and congruent to solving the violation
15th Amend. — prohibits state and fed. govts. from denying any citizen the right to vote on the basis of race or color
- Can be limited by other Const. principles
- Much less likely to appear on the bar exam
Courts use three tests to analyze the constitutionality of govt. acts under substantive due process and equal protection
- Note — memorize these tests verbatim
Rational basis — a law will be upheld if it is 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
- Burden of proof — challenger 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
- Burden of proof — govt. bears the burden of proof
Strict scrutiny — a law will be upheld if it is necessary to achieve a compelling govt. interest
- Govt. must show there are no less restrictive or burdensome means of achieving its goal
- Courts look at the actual reason the law was enacted
- Burden of proof — govt. bears the burden of proof
Due Process
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A fair process (e.g., notice, hearings) is required for govt. to take or deprive a person’s life, liberty, or property
- Due process rights arise only if govt. acts to deprive an individual, not when govt. acts generally
Analysis:
- Has there been a deprivation of life, liberty, or property?
- Liberty deprivation — loss of 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
- E.g., public school attendance, welfare
- Property deprivation — a legitimate claim or entitlement to a benefit under law, which goes unfulfilled
- What procedures are required? — determined by balancing:
- Importance of the individual interest involved, and
- Value of procedural safeguards to that interest, against
- Govt. interest (i.e., fiscal or administrative efficiency)
- Usually fair procedures, an unbiased decision-maker, and notice of the govt.’s action will be required
Examples — procedural due process requirements arise with:
- Terminating welfare/social security benefits; separating child from parents; punitive damages awards; enemy combatant status for citizens obtained in foreign countries
Involves the determination of whether govt. has adequate reasons for depriving life, liberty, or property
- Encompasses both fundamental and non-fundamental rights
Applicable levels of scrutiny
- Non-fundamental rights — rational basis
- Fundamental rights — strict scrutiny
- See Card 30 - Fundamental Rights & the Right to Privacy
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 classes of people differently than others, often based on some trait
Economic rights — rational basis test
- Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one’s economic rights)
- Rational basis applies unless the infringement falls under the Contract Clause (see below) or Takings Clause (see card 29)
- Govt. almost always wins under the rational basis test
Contract Clause — states cannot impair existing contractual duties
- Applies only to state/local interference with existing contractual obligations, including govt. obligations
- Levels of scrutiny — different for private vs. public contracts:
- Private contracts — intermediate-type scrutiny: if a law substantially impairs a party’s rights under an existing contract, it violates the Contract Clause unless the law:
- Serves an important, legitimate public interest; and
- Is reasonable and narrowly tailored in promoting that interest
- Govt. contracts — stricter scrutiny
- Local laws substantially impairing or interfering with existing govt. contracts must be reasonable and necessary to serve an important public purpose
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The Const. prohibits state and fed. govts. from passing retroactive laws, which generally involve either ex post facto laws or bills of attainder
Ex Post Facto Clause — prohibits ex post facto laws
- Test — a law is an ex post facto law if it either:
- Criminally punishes conduct that was lawful when done,
- Increases punishment for a crime after it has been committed, or
- Reduces the burden required to convict a person for a crime after it has been committed
- Does not apply to civil liability, where retroactive legislation must meet only rational basis
- Note — Ex Post Facto Clause is contained in the Contracts Clause
Bill of attainder — legislative acts that punish specific individuals or group members without a judicial trial
- E.g., an order to imprison a person without judicial process
- Bills of attainder are prohibited under the Const.
The 5th Amend. prohibits govt. from taking private property without providing just compensation to the owner and/or occupant
- Govt. may take private property for “public use”; taking can be possessory (i.e., physical) or regulatory (see below)
- Applies to govt. action that significantly damages property or its use
3-part analysis — to determine if a taking is constitutional, ask:
- 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
- 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
- Possessory taking — govt. takes or occupies physical property
- 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
- Is just compensation paid? — measured in terms of loss to owner
- Measured by fair market value of property at time of taking
Fundamental Rights
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Fundamental rights are treated under both 5th Amend. substantive DP and 14th Amend. EP
- Substantive DP — applies if a right is denied to all
- EP — applies if a right is denied to some but not others
Govt. acts that do not implicate fundamental rights receive rational basis review
Overview of fundamental rights
- Right to privacy — an inferred right that encompasses several rights with varying levels of scrutiny:
- Strict scrutiny review:
- Right to marry
- Right to procreate
- Rights concerning family and children:
- Right to custody of one’s children
- Right to keep family together
- Right to control children’s upbringing
- Right to contraceptives
- Separate or unknown levels of review:
- Strict scrutiny review:
- Right to engage in private, consensual homosexual activity (unknown)
- Right to refuse medical treatment (unknown)
- Right to vote — usually implicated under the EP clause
- Right to travel — usually implicated under the EP clause
As of 2022, abortion is no longer recognized as a substantive DP right included in the right to privacy
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)—U.S. Supreme Court held that the Constitution does not confer a right to abortion, overruling Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992)
- Individual states now have the authority to regulate access to abortion
Equal Protection
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Application — how EP applies to fed., state, and local govts.:
- 14th Amend. EP Clause applies directly to state/local govts.
- EP applies to the fed. govt. by incorporation through the 5th Amend. DP Clause (i.e., EP Clause does not apply directly to the fed. govt.)
- The same analysis and levels of scrutiny apply for EP analysis whether it applies through the 5th or 14th Amend.
Analysis — if you see anything that could implicate EP, ask:
- Is there a discriminatory classification?
- To receive heightened scrutiny, a discriminatory classification must be proved (see card 33)
- What level of scrutiny applies given the classification?
- Suspect classifications — strict scrutiny
- Quasi-suspect classifications — intermediate scrutiny
- All other alleged classifications — rational basis
- Does the classification satisfy the appropriate level of scrutiny?
Classifications must be discriminatory to be reviewed under heightened scrutiny (intermediate or strict scrutiny)
Three 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 — law does not create a classification by its terms, but does so as applied
- E.g., only men are arrested under an otherwise valid law
- Discriminatory motive/purpose behind law and/or application
- Test — P must show:
- Disparate impact — the law has a discriminatory impact (i.e., it creates a classification); and
- Discriminatory purpose — law was enacted or maintained for reasons involving discrimination
- Demonstrating discriminatory impact alone is not enough; there must be some evidence of govt.’s discriminatory motive
- Test — P must show:
Challenger bears burden — burden is on the party challenging the classification to show that it is discriminatory
The following lists classifications and the standard of review they receive
Rational basis
- Alienage, but only if classification:
- Relates to self govt. and the democratic process,* or
- Is a congressional action concerning immigration*
- All other — all other classifications not qualifying for strict or intermediate scrutiny receive rational basis review
- E.g., age, disability, wealth, economics
Intermediate scrutiny (quasi-suspect classification)
- Gender
- Nonmarital children
Strict scrutiny (suspect classification)
- Race
- National origin
- Alienage*
- Right to travel
- Right to vote
*See Card 36 - Alienage Classifications
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Classifications based on race or national origin are suspect classifications reviewed under strict scrutiny
- Note — often arises on the bar exam in the context of classifications benefitting minorities, which may be upheld
Classifications benefitting minorities (affirmative action)
- Numerical set-asides (quotas) — to be valid, requires clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrongs
- Quotas are unlikely to be upheld
- Public education & higher education — Diversity is not a compelling interest sufficient to overcome strict scrutiny at any level of education (e.g., primary, secondary, or college/university)
- Most public school and higher education programs that directly consider race in admissions/assignment decisions will not be upheld
Classifications based on alienage (i.e., citizenship status) are subject to strict scrutiny review, although certain exceptions apply
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 rational basis review:
- Voting
- Serving on a jury
- Working as a police officer
- Working as a teacher
- Working as a probation officer
- Areas where alienage classifications have been upheld under rational basis review:
- A congressional law regulating immigration
- Congress has plenary powers to regulate immigration
- Note — undocumented aliens are not considered a suspect classification
Gender — int. scrutiny + “exceedingly persuasive justification”
- Gender classifications receive heightened intermediate scrutiny (i.e., they must substantially relate 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 intermediate scrutiny (e.g., statutory rape laws applying only to men, all-male military draft)
- Classifications benefitting women:
- Classifications based on stereotypes are impermissible
- Classifications designed to remedy past discrimination or differences in opportunity will likely be upheld
Nonmarital children (legitimacy classifications)
- Usually arises with intestacy statutes
- Intermediate scrutiny — applies if a law grants benefits to all marital children but denies benefits to some nonmarital children
- Laws that deny benefits to all nonmarital children while granting benefits to all marital children are unconstitutional on their face
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Although both are fundamental rights that can be analyzed under substantive due process, the right to travel and vote often arise as classification issues requiring equal protection analysis
Right to travel — strict 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; 1-yr residency to receive subsidized medical care; 1-yr residency to vote in state elections
- Valid residency requirements — 30-day residency to vote in state elections; 1-yr residency to get a divorce
Right to vote — strict scrutiny
- Arises with laws that deny some citizens the right to vote
- The “one person, one vote” requirement must be met for all state and local elections
- For elected bodies, voting districts must be similar in population
- At-large elections — constitutional
- When all voters vote for all office holders
Freedom of Speech
The 1st Amend. protects freedom of expression, including freedom of speech, of the press, of assembly, and of association
Protected speech — where protected speech is at issue, the level of scrutiny depends on whether the speech restriction is content-based
- Content-based restriction — strict scrutiny
- Occurs where govt. seeks to restrict speech b/c of its content (i.e., based on the subject matter or viewpoint)
- Content-neutral restriction — intermediate scrutiny
- Occurs where a govt. restriction applies to all expression regardless of the content or viewpoint
Unprotected or lesser-protected speech (see cards 46-50) — some categories of speech receive lesser or no 1st Amend. protection
- E.g., obscenity, commercial speech; analyze lesser-protected speech restrictions under the appropriate test given the type of speech
Speech on govt. property (see cards 40-41) — public forum doctrine
- Special rules apply depending on whether the govt. property is a public forum, designated public forum, or non-public forum
Freedom of the press — press has a right to publish matters of public concern; any restriction or punishment must be narrowly tailored to further a state interest of the highest order (essentially strict scrutiny)
See cards 40-50
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Public forums are govt. property that the govt. is constitutionally required to make available for speech (e.g., sidewalk, park)
- Regulations must be content-neutral
Test for public forum restrictions — to be upheld, the restriction must:
- Be content-neutral
- I.e., only regulates time, place, or manner of speech
- If the restriction is content-based, strict scrutiny applies
- Be narrowly tailored to serve an important govt. purpose
- Leave open adequate, alternative channels of communication
- Does not have to be the least-restrictive alternative
- Permit fees that vary depending on the type of speech are content-based and unconstitutional
Designated public forums—govt. properties that govt. opens for speech on limited basis (practice or policy)
- E.g., public school facilities open after school for use by social, civic, or recreation groups
- Test—same rules as public forums (e.g., content-neutral; strict scrutiny), but only when property is open for speech
See Card 41 - Limited Public Forums & Non-Public Forums
Govt. properties that are not public forums may impose greater restrictions on speech
Limited public forums—govt. properties opened only for specific speech activity
- E.g., school gym used for a debate on a specific community issue
- Test—Can reserve for intended use. Same rules as nonpublic forum
- E.g., must be viewpoint neutral and reasonably related to legitimate govt. purpose
Non-public forum — govt. property that can be closed to speech (e.g., military bases, airports)
- Test — govt. can regulate speech if the regulation is:
- Reasonably related to some legitimate purpose; and
- Viewpoint neutral
- 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 the speech to only one view
Prior restraints involve a court order or other ban on speech or publication before it occurs
- Strict scrutiny applies — prior restraints are difficult to uphold
- Often arises as court order/injunction preventing speech (see below)
Requirements — to be valid, a prior restraint requires:
- Govt. interest — there must be at least some significant govt. interest justifying the restraint (i.e., a special societal harm)
- National security may be a sufficient harm/govt. interest, but the harm must be more than theoretical
- Procedural safeguards — for those whose speech is restrained
- Safeguard must ensure restraint is narrow, reasonable, and definite; and provides for prompt, final judicial determination
Preliminary injunction — to prevent pretrial discussion in order to preserve a fair trial; only valid if it’s the only way of preserving a fair trial
- Note — P must comply with valid injunction until it is vacated or overturned; P cannot challenge a violated injunction
Permits/licensing — govt. may require licenses or permits for speech only if it has a reasonable justification for doing so
- Requirements for permit/license must be similar to a “rubber stamp” process and must provide review for denied permits/licenses
- P can challenge a denial on constitutional grounds, even if violated
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Laws can be struck down due to grounds of vagueness or overbreadth
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” is unconstitutionally vague b/c a reasonable person must guess as to what behavior is punishable
Overbreadth — 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 also restricts protected speech
- E.g., law prohibiting all “live entertainment” may validly restrict obscenity, but also invalidly prohibits protected speech in concerts or theater
- If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected
- B/c remedy is severe, facial invalidation only justified if unconstitutional applications are realistic and substantially disproportionate to statute's lawful sweep
Note — “fighting words” statutes are almost always unconstitutionally vague and overbroad and will not be upheld (see card 46)
Symbolic speech refers to expressive or communicative conduct (i.e., conduct intended to convey a message)
Test — govt. can regulate symbolic speech if:
- The regulation furthers an important govt. interest;
- That govt. interest is unrelated to suppression of the message; and
- If the restriction is aimed at speech more than conduct, it is likely unconstitutional
- The impact on speech is no greater than necessary to further the important govt. interest
Examples:
- Burning U.S. flag — protected symbolic speech
- Burning a cross — protected unless intended to threaten
- Public nudity — not protected
Govt. speech cannot be challenged as violating the Free Speech Clause
Freedom to speak includes freedom not to speak
- Govt. cannot compel a person to express a message with which the person disagrees (e.g., govt. cannot require people to salute the flag)
- Govt. may use tax revenue to express a govt. message even if the taxpayer disagrees with the message
- Public accommodation laws (i.e., laws that prohibit some forms of discrimination when businesses offer goods and services to the public) sweep too broadly when they compel speech
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Lesser-Protected Categories of Speech
Incitement of imminent unlawful activity, fighting words, and true threats are categories of speech that may be punished and restricted
Incitement of imminent unlawful activity
- Test — govt. may punish speech if:
- There is a substantial likelihood the speech will bring about imminent illegal activity; and
- The speech is aimed at causing imminent illegality
- Note — this test, often referred to as the “Clear & Present Danger test,” is difficult to satisfy; any law aimed at restricting incitement must be narrowly tailored
Fighting words
- Govt. may punish speech if it is likely to cause an immediate violent response against the speaker
- Note—fighting words statutes tend to be overbroad, vague, or deemed content-based and fail under strict scrutiny
True threats — a threat communicated with the intent to place the recipient in fear of bodily harm is not protected speech
Govt. may regulate obscenity, which is unprotected speech
Test — expression is obscene if:
- It appeals to prurient interests (sexually stimulating)
- Average person standard — how would the average person, applying community standards, view the material as a whole?
- It is patently offensive in its sexual portrayal
- Material must offend community standards regarding portrayal of sexual matters
- Any law prohibiting obscene material must specify what is deemed patently offensive
- Taken as a whole, the material lacks serious literary, artistic, political, or scientific value
- Determined based on national standard (not community standard, as is the case for first two prongs)
See Card 48 - Obscenity & Profanity Regulations
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Zoning — govt. may use zoning to regulate lewd speech or conduct if regulation is designed to combat secondary effects
- E.g., ordinance limiting strip clubs to a small city section can be valid 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—gov may make private possession of child pornography a crime
- Child pornography = actual children are depicted
- Adults portraying children is not child pornography
Profanity/indecent speech — generally protected
- Two exceptions — profane/indecent speech is punishable if either:
- Speech is aired over broadcast media (not cable), or
- Speech occurs in public schools
See Card 47 - Obscenity
Govt. may regulate some commercial speech subject to a test similar to intermediate scrutiny
Unprotected commercial speech
- Test — 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
Protected commercial speech — speech that concerns lawful activity and is not misleading
- Test — govt. can only regulate protected commercial speech if:
- There is a substantial govt. interest in regulating the speech
- The regulation directly advances that govt. interest; and
- The regulation is not more extensive than necessary to serve that govt. interest
- A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive alternative
1st Amend. considerations arise when defamation involves a public official and/or a matter of public concern
Public figures, public officials, and matters of public concern
- Public figure = one who has pervasive fame or notoriety or voluntarily assumes a central role in a particular public matter
- Public official = public office holder
- Matter of public concern = statement relates to a community interest or concern (includes national interests)
Additional requirements — if defamation involves a public figure, official, and/or public concern, P must prove:
- Falsity — P must prove the statement was false
- Fault — P must prove D was at fault; standards differ for public vs. private figures:
- Public official or figure — actual malice standard (knowledge of falsity or reckless disregard as to truth)
- Private figure — negligence of the statement’s veracity
Damages
- Public figures or officials—P can collect compensatory damages and possibly punitive damages
- Private figures — damages for actual injury only; P must prove actual malice for compensatory or punitive damages
See Torts section on Defamation
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Other 1st Amendment Protections
Religion is protected under the Free Exercise Clause and the Establishment Clause, both under the 1st Amend.
Free Exercise Clause — prohibits govt. from punishing someone solely on the basis of that person’s religious beliefs or conduct
- Govt. action must be necessary to achieve a compelling interest, but Court has never upheld religious punishment under this standard
- Limitation — only applies if the purpose of a govt. act is to limit or interfere with religious practice or beliefs
- Acts of general applicability (i.e., not designed to regulate or interfere with religion) are valid
Establishment Clause — prohibits govt. acts that establish/sponsor/coerce religion or give preference to one religion over another
- Govt. generally must remain neutral toward religion and may not coerce individuals to exercise (or refrain from exercising) religion
- Generally, govt. powers may not be delegated to or shared with religious institutions
- Govt. action that is not neutral may still be permissible if supported by history and the Founding Fathers’ intent
Freedom of association protects the right to participate in a gathering, club, or other organization to pursue 1st Amend.-protected goals (e.g., political advocacy) — strict scrutiny usually applies
Analysis — govt. interference with association is valid only if:
- Govt. act is in pursuance of a compelling govt. interest; and
- That interest cannot be achieved by less restriction means
- Note — this test is largely analogous to strict scrutiny
Restrictions on group discrimination — a govt. law or regulation may be invalid if it interferes with a group’s expressive activities
- Usually involves groups formed for expressive, non-intimate purposes (e.g., NAACP, KKK)
- E.g., KKK not required to accept non-white members b/c this exclusion is integral to its organizational message
Laws criminalizing membership — govt. must prove that D:
- Actively affiliated with a group involved with illegal activities;
- Had knowledge of the group’s illegal activities; and
- Acted with the specific intent of furthering those activities
Disclosure requirements — strict scrutiny if chilling effect
- Laws requiring disclosure of group membership must meet strict scrutiny if disclosure would have the effect of chilling association (i.e., if it would inhibit the group’s ability or willingness to associate)
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