Constitutional Law

Ministerial Exception

"Ministerial exception"—in 2012, the Supreme Court held that the First Amendment requires a ministerial exception to employment laws. § Non-discrimination employment laws cannot be applied to ministers § The Supreme Court held that the First Amendment precludes claims concerning the employment relationship between a religious organization and its ministers. § The federal government cannot regulate employment relations between a religious institution and its ministers. § The term "minister" was construed broadly.

Non-Suspect Classifications

(Age and Wealth) Triggers rational basis

Quasi Suspect Classifications

(Gender and Legitimacy) Trigger intermediate scrutiny—is the law substantially related to an important government interest?

Procedural Due Process

(Right to Notice AND a Hearing): 5th (fed) 14th (state) Consists of two questions: 1) Is life, liberty, or property being taken? 2) If life, liberty, or property is being taken, what process is due? Breakdown of loss of life, liberty, and property o Life: Death penalty requires procedural due process o Liberty: Physical confinement, probation and parole, physical injury (such as a spanking in school), any restriction on legal rights (including being punished for free speech). Injury to reputation (without more) is not a loss of liberty. o Property: You have a property interest in your government job or benefit whenever you have a legitimate entitlement to continued enjoyment of the job or benefit. § A mere expectation of continued employment or benefit does not suffice. § Most government benefits are entitlements, and hence property. § How can you tell whether you have an entitlement to a government job or whether you have a mere expectation of government employment? · Government jobs are entitlements only when the government says so—such as by providing a contractual term or discharge only "for cause." § Deprivation: Notice and a hearing are not required when there is an accident. Random negligence by a state employee does not constitute a deprivation of life, liberty, or property (e.g., death by a municipal garbage truck). Deprivation requires the intentional taking away of life, liberty, or property. · If life, liberty, or property is being taken by the government, what process is due? Procedural due process is variable, and types of hearings can range from casual to elaborate. To decide what kind of process is due, the courts balance three factors: 1) The individual interest at stake (life, liberty, property); 2) The value of the procedure in protecting that interest; and 3) The government's interest in efficiency and cost. (burden) Timing of the hearings § Sometimes, a hearing must occur before the deprivation. § Sometimes, hearing can occur after the action, so long as the hearing is prompt and fair · Examples include: Terminating disability benefits; disciplinary suspension from a public secondary school. Public employees who can be fired only "for cause" must be given some opportunity to be heard prior to discharge, unless there is a significant reason not to keep the employee on the job. If there is a significant reason not to keep a person on the job, then the discharge can come first with a subsequent hearing that is prompt and provides reinstatement with back pay (fair). Court access—court fees are waived for an indigent person if the fees will deny a fundamental right; counsel is appointed for indigent criminal defendants

Expressive Conduct

(Symbolic Speech) Laws regulating expressive conduct are upheld if: · The regulation is within the government's power to enact; · It furthers an important governmental interest; · The interest is unrelated to the suppression of ideas; and · The burden on speech is no greater than necessary. If gov't is trying to suppress particular message, then law will be struck down; if gov't is trying to pursue interest unrelated to suppression of expression, then law will be upheld

Suspect Classifications

(Trigger Strict Scrutiny and Arise under Equal Protection) Race, Ethnicity, or National Origin; Alienage

Political Gerrymandering

(drawing districts to hurt one party) · Can, in theory, violate equal protection. In practice, it is never struck down. · The Supreme Court has not found any judicially manageable standards for implementing that guarantee. · A political question (non-justiciable)

Ex Post Facto Laws

(i) criminalizes act that was not crime when it was originally committed; (ii) authorizes more severe penalty after n act was committed; (iii) deprives D of defense available when act was committed; or (iv) decreases prosecution's burden of proof below that required when act was committed

Legitimacy Quasi Suspect Classification

(i.e., something depends on whether parents were married at the time of one's birth) laws are almost always invalid, especially if punitive in nature. § Constitutional rights of undocumented aliens—Plyler v. Doe: Undocumented aliens are not a suspect classification. Even so, states cannot deny undocumented children public education. § Classifications on the basis of status as a nonmarital child are subject to intermediate scrutiny—they must be substantially related to an important governmental interest.

Mootness

(injury must have occurred or not be speculative) cases are overripe and are dismissed whenever become moot. Cases can become moot during trial or on appeal. Exception: Controversies capable of repetition, yet evading review, are not moot, even though they look like it. o Such controversies always have an internal time limit (e.g., pregnancies and abortion). o Also, D voluntarily ceases illegal or wrongful action upon litigation o Collateral legal consequences can be imposed based on challenged conviction o Named P's claim in class action suit is resolved (i.e., fact doesn't render entire class action moot)

Ripeness

(must have a live controversy) concerns prematurity of a case. You must show actual harm or an immediate threat of harm

Original Jurisdiction

A case may be filed first in the Supreme Court (controversies between states, mostly). Cannot be expanded or limited by congress

Political Questions

A non-justiciable question when it is inappropriate for judicial resolution · The issue is committed to another branch of government for decision; · There are no manageable standards for adjudication. Examples of non-justiciable political questions include: · Guarantee Clause (protecting the republican form of government); · Foreign affairs, opening or breaking off diplomatic relations w/ another country; · Impeachment procedures; and · Political gerrymandering (drawing districts to establish a political advantage of one party over another). o Political gerrymandering can violate equal protection; but o The court has found no judicially manageable standards for determining what is and what is not acceptable in the area of drawing districts.

Regulatory Taking

A zoning regulation can be considered a taking when it leaves no economically viable use for the property (rare). A law has the effect of decreasing the value of the property 1) Total taking—the regulation leaves no economically viable use of the property · Per se taking if permanent physical occupation and permanent total loss of property's economic value 2) Partial Taking—the regulation affects some economic use of the land, but there is still some economic use available a) Economic impact—how much value was lost due to the regulation; b) Reasonable expectations—the owner's reasonable expectation of return on investment; and c) Character of the regulation—does the regulation impact a few owners or the entire community?

Age Non-Suspect Classification

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

Fifteenth Amendment

Voting Congress has the power to ensure there is no racial discrimination in voting

Delegation of Legislative Power

Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards

Content-Based Regulation of Speech

Content-based regulations of speech trigger strict scrutiny and are usually struck down Government must show the regulation is: a) Necessary to achieve; b) A compelling governmental interest; and c) Narrowly tailored to meet that interest

time, place, and manner restrictions

Apply principally in a public forum. Content-neutral regulation (Intermediate Scrutiny) Government must show the regulation is: a) Substantially related to; b) An important government interest Only time, place, and manner may be regulated in a public forum. There are 3 requirements: 1) Content neutral: Must be content neutral on its face and as applied Also, must not allow executive discretion 2) Alternative channels of communication must be left open: Time, place, or manner law must be a guideline for speech, not a flat prohibition of speech. 3) Must narrowly serve a significant state interest: Under this test, most content-neutral time, place, or manner regulations are upheld. Does not require a compelling interest

Adequate and Independent State Grounds (AISG)

Arises only in SCOTUS, and only when SCOTUS reviews state court judgment. Rule: SCOTUS can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on an adequate and independent state ground.

Thirteeth Amendment

Ban on slavery § Congress has broad power to legislate against racial discrimination, whether public or private § Includes purely private racial discrimination

Contract Clause

Bars states from legislative impairment of existing contracts, unless there is an overriding need (something like an emergency).

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. § Nondelegable powers: impeachment power, power to declare war; etc. § Not a demanding test—almost all delegations of legislative powers are upheld.

Obscenity

Defined by the rule of "S" Test: average person, applying contemporary community standards finds the speech: · Appeals to the prurient interest [sexy] (community [standard]); · Depicts sexual conduct in a patently offensive way [society sick] (community [standard]); and · Lacks [serious] literary, artistic, political, or scientific value (national [standard]) Footnotes on obscenity: · Minors: A lesser legal standard can be applied to minors, but the government cannot ban adult speech simply because it would be inappropriate for minors. · Child pornography: Can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home. · Land use restrictions: Narrowly drawn ordinances can regulate the zoning of adult theaters, but cannot ban them entirely.

Fourteenth Amendment

Equal Protection and Due Process Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts. · Does not enable Congress to redefine constitutional rights by legislation · Only permits Congress to adopt remedies reasonably designed to enforce individual rights as they have been defined by the courts To be properly remedial, the 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. The Religious Freedom Restoration Act (RFRA) 14th Amend, Section 5 Enabling Clause permits Congress to pass legislation to enforce equal protection and due process rights guaranteed by amendment, but not to expand those rights or create new ones. Though Congress may override state government action that infringes upon 14th Amend rights if "congruence and proportionality" test is satisfied, its enforcement power would not stretch to prohibit a law that does not violate the Constitution. In other words, as there would be no constitutional injury to prevent or remedy, the proposed law would be both incongruent and disproportionate. Protection of national citizenship in Clause I of the 14th Amend (Citizenship Clause) prevents Congress from taking away a person's citizenship, unless that citizenship was obtained by fraud or in bad faith.

Non-Public Forum

Example: Government offices, schools, jails, military bases, sidewalks on postal office property, airport terminals; Can also include privately owned areas that are held open to the public, such as a public lobby in a private building. Government can regulate speech if: a) The regulation is viewpoint-neutral; and b) Reasonably related to; c) A legitimate government interest Viewpoint-neutral—the government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented Reasonable—restriction must be rationally related to a legitimate governmental interest

Traditional Public Forum

Example: Sidewalks, streets, parks § Content-based regulations are subject to strict scrutiny. § Content-neutral regulations are subject to the time, place, and manner test; must be: · Narrowly tailored; · To serve a significant government interest; and · Leave open ample alternative channels for communication

Domestic Power

Executive Issue executive orders Few powers that are exclusively executive and, therefore, not subject to statutory control: § Pardon Power: The President can pardon or commute punishment for any and all federal offenses. (Governors have a similar power for state crimes.) This power cannot be limited by Congress. · while President may not pardon a person with respect to future acts, a President may pardon a person at any time after the offense has been committed. · President's power to pardon does not extend to impeachment of federal official. § Veto Power: The President has 10 days to veto legislation. President can veto for any reason or no reason, but cannot veto specific provisions in legislation and accept others. · Overriding a veto requires a 2/3 majority vote of each house. · Do nothing—result depends on whether Congress is in session at end of 10-day period o Congress in session—bill becomes law without the President's signature o Congress adjourned—bill does not become law (pocket veto; cannot be overridden) § Appointment and Removal of Executive Officers: Only the President (or his appointees) can hire or fire executive officers. Some senior officers (e.g., cabinet officers, ambassadors, federal judges) require advice and consent of Senate. Senate has a power of rejection. Senate's approval power doesn't translate into power of appointment. · Who are executive officers? Anyone who takes action on behalf of the U.S. · Appointment—the President appoints all "officers of the United States," with the advice and consent of the Senate · Removal—generally accepted that the President may remove any executive appointee without cause (and without Senate approval) · Just as Congress cannot hire or fire an executive officer, it cannot give executive power to any officer it can hire or fire. · Congress may, delegate appointment of "inferior" officials to President alone (i.e., without Senate approval), heads of executive departments, or courts. "Inferior" officials are those supervised by Senate-confirmed appointees. § Authority as chief executive—the President's authority varies with the degree of congressional authorization of the action § Duty to faithfully execute laws—the "Take Care Clause" imposes duty on the President to faithfully execute laws, even when the President disagrees

Foreign Affairs Powers

Executive o Commander in Chief: The President has control over military decisions, although Congress has exclusive power to declare war o 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. o Executive agreements: presidential negotiations not submitted for approval by the Senate. They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. They do not have the binding status of a treaty.

Defamation

False statements of act (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. [actual malice] § Private plaintiffs can recover on proof of negligent falsity. § Public concern—if P is private figure but defamatory statement involves matter of public concern, then P need only prove negligence with respect to falsity of statement

Intergovernmental Immunities

Federal Immunity: Federal gov't is generally immune from direct state regulation or taxation. § However, states can tax indirectly (e.g., taxing the income of federal employees). State immunity: § States are not immune from direct federal regulation (e.g., pollution regulations, employment laws, etc.). § Federal regulation: federal gov't has virtually unlimited power to regulate the states · As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states · Congress cannot "commandeer" state legislatures by commanding them to enact specific legislation (or prohibiting a state from enacting new laws) · Limitation on conditional funding—condition must (i) be for the "general welfare," (ii) be unambiguous, (iii) relate to federal interest in particular national projects or programs, (iv) not induce states to act unconstitutionally, and (v) not exceed the point at which "pressure turns into compulsion" § Federal taxation—the federal government may tax a state, but states have partial immunity from direct federal taxation that would unduly interfere with the performance of the states' "sovereign functions of government" o States cannot shield state officers from federal liability for violating federal constitutional rights. § Exception: anti-commandeering principle. States cannot be forced to carry out federal programs. federal gov't can always use spending power to bribe states to comply.

Advisory Opinions

Federal courts cannot issue advisory opinions. Federal courts cannot rule on the constitutionality of proposed legislation

Preemption

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. Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare. Any state constitutional provision or law that directly or indirectly conflicts with a federal law, including federal regulations, is void under this clause. SCOTUS has frequently stated that there is presumption against preemption, especially in areas in which states have traditionally exercised police power. If federal law does not preempt state law, a state is free to enact legislation regarding the same issue. Express preemption—when the Constitution makes federal power exclusive or Congress has enacted legislation explicitly prohibiting state regulation in the same area § Narrow construction—express federal preemption must be narrowly construed § Savings clause—may explicitly preserve or allow state laws regulating in the same area Implied Preemption 1) Congress passes a federal law intending to "occupy the field" 2) The state law conflicts directly with federal law 3) The state law conflicts indirectly with federal law § A state can pass more stringent laws than the federal law, so long as they don't conflict. Absence of preemption: If federal law does not preempt state law, a state is free to enact legislation regarding the same issue § Federal law sets a floor below which state law generally cannot go, but it does not set a ceiling beyond which state law cannot go

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

Forbids serious discrimination against out of state individuals (not corps), absent substantial justification. · "Serious discrimination" typically involves employment. Rights protected—prohibits one state from discriminating 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) · Exception—substantial justification: discrimination against out-of-state citizens may be valid if the state can show: o The nonresidents either cause or are a part of the problem that the state is trying to solve; and o There are no less-restrictive means to solve the problem Rule: There can be no legal requirement of residency for private employment. States cannot require that you live or reside in the state to work in the state. However, public employment can require residency requirements. · Examples of private employment requirements (can't depend on residency): Admission to the bar; other occupational licenses. · Examples of public employment (can depend on residency): city hiring only city residents or requiring certain percentage of city residents on city construction projects Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access.

Regulation of Association

Freedom of association: Cannot be punished or disadvantaged because of political associations. § generally protects the right to form or participate in any group, gathering, club, or organization; infringement may be justified by compelling state interest Public employment: An individual generally cannot be denied public employment based simply upon membership in a political organization § A person may only be punished or deprived of public employment based on political association if that individual: · Is an active member of a subversive organization; · Has knowledge of the organization's illegal activity; and · Has specific intent to further those illegal objectives. Loyalty oaths: Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as vague and/or overbroad Bar membership: States can investigate good character § Admission cannot be denied on basis of political association unless candidate knowingly belongs to a subversive organization with specific intent to further its illegal ends § State may deny bar membership to candidate who refuses to answer questions about political affiliations if refusal obstructs investigation of candidate's qualifications Elections and political parties § Voters in primary elections: A state cannot require a local political party to select presidential electors in an open primary when the national party prohibits nonparty members from voting · A state can require a semi-closed primary system even if the party wants to permit anyone to vote · A state may not prohibit a political party from allowing independents to vote in its primary § Ballot access to general election—state may refuse to grant a political party's candidate access to the general-election ballot unless the party demonstrates public support through voter signatures on a petition, voter registrations, or previous electoral success § Fusion candidate: A candidate who is nominated by more than one political party · A state may prohibit a fusion candidate from appearing on the general-election ballot as a candidate of multiple parties Criminal penalty: A statute that purports to criminally punish mere membership in an association violates the First and Fourteenth Amendments § Such membership may only be criminalized if: (i) group is actively engaged in unlawful activity, or is engaging in advocacy that passes the "clear and present danger" test; and (ii) the defendant knows of and specifically intends to further the group's illegal activity

Gender Quasi Suspect Classification

Gender classifications are almost always invalid § There must be discriminatory intent by the government to trigger intermediate scrutiny (not just disparate impact) § Permissible examples of gender classifications: Statutory rape can be gender-specific (historically); and the draft. § Gender discrimination—must also show an "exceedingly persuasive justification". Must also show that facilities are substantially equivalent § Affirmative action (benign discrimination) is permissible under intermediate scrutiny as a remedy for past gender-based discrimination

Speech by Government Employees

General rule: Government employees generally cannot be hired or fired based on political party, political philosophy, or any act of expression § Can be fired for disrupting the workplace or not doing their jobs. Exception: This general rule does not apply to confidential advisors or policy-making employees (e.g., the President's cabinet officers).

Substantive Due Process

If a law denies a fundamental right to everyone, it violates due process

Equal Protection

If a law denies a fundamental right to only some, it violates equal protection Discrimination requirement § Discriminatory intent—strict or intermediate scrutiny (depending on classification) § Disparate impact—rational basis review

State Taxation of Interstate Commerce

Generally, the requirements are the same as for any other state regulation of commerce: Discriminatory taxation will be struck down unless Congress consents, and non-discriminatory taxation will be upheld unless it is unduly burdensome Interstate commerce § General rule—states may tax interstate commerce only if Congress has not already acted in particular area and tax does not discriminate against or unduly burden interstate commerce § Four-part test: · Substantial nexus—between the activity being taxed and the taxing state; · Fair apportionment—such that interstate commerce does not pay total taxes greater than local commerce; · Nondiscrimination—no direct commercial advantage to local businesses over interstate competitors (even if neutral on its face); and · Fair relationship—tax must be fairly related to services provided by taxing state. o Foreign commerce—states must have congressional consent to impose import or export taxes (except what is absolutely necessary for executing its inspection laws) Ad Valorem Property Taxes (value-based property taxes) § Levied on personal property § Distinguish between two kinds of personal property because they are taxed differently: · Commodities are the goods that move from state to state. o States tax all commodities within their borders on a specified date (called tax day), but not goods that are merely in transit—the commodities have to come to rest in the state. o Rule: Pay the full tax to every state where goods are stopped for a business purpose on tax day. No taxes are due where they are merely passing through · Instrumentalities are the transportation equipment that moves commodities (railroads, trucks, airplanes, etc.) o Fair apportionment of tax liability among states with a substantial nexus to the instrumentality. o Each state in which an instrumentality is used can tax the value of that instrumentality.

Free Exercise of Religion

Includes the freedom to believe and the freedom to act Religious Belief: must have genuine belief in that religion § Doesn't include philosophies and political beliefs § The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law § The government may not: (i) deny benefits or impose burdens based on religious belief; (ii) require affirmation of a belief; or (iv) determine the reasonableness of a belief (although it may determine the sincerity of the person asserting that belief) Religious Conduct § Protected qualifiedly [not absolutely protected] · Laws regulating religious conduct because of its religious significance are unconstitutional (i.e., laws aimed at religion). [strict scrutiny] · Neutral regulation of conduct: Neutral, generally applicable laws must be obeyed despite religious objections. [rational basis] o No right to accommodation. o No constitutional right to exemption from neutral, generally applicable regulations of conduct (e.g., Peyote case). o Exception: "Ministerial exception"—in 2012, the Supreme Court held that the First Amendment requires a ministerial exception to employment laws. § Non-discrimination employment laws cannot be applied to ministers § The Supreme Court held that the First Amendment precludes claims concerning the employment relationship between a religious organization and its ministers. § The federal government cannot regulate employment relations between a religious institution and its ministers. § The term "minister" was construed broadly. o Campus Access: A state university that allows student groups to meet on campus must allow student religious groups equal access. · Under Religious Freedom Restoration Act, neutral laws of general applicability are subject to strict scrutiny if they substantially burden free exercise of religion

Strict Scrutiny

Is the law necessary for a compelling government interest? § Implicit in strict scrutiny is the requirement for the least restrictive means. § When strict scrutiny applies, government bears the burden of proof. The government must show that the interest is compelling and the law is necessary to that interest. § Applies when there is a suspect classification or a fundamental right § Least restrictive—there cannot be a less restrictive way to achieve the interest and the law should be neither over- nor under-inclusive § Compelling interest—generally understood to mean necessary or crucial

Rational Basis Review

Is the law rationally related to a legitimate interest? § The challenger bears the burden of proof of showing that this standard is not met. · Very easy for government to pass § Applies to all other cases (residual test) § The government's stated interest in enacting the law need not be one that it offered when the law was passed; any legitimate reason will suffice § In practice, applied to laws related to lifestyle, taxation, zoning, and punitive damages

Intermediate Scrutiny

Is the law substantially related to an important government interest? § Applies to classifications based on legitimacy and gender § While three standards of review are available in both substantive due process and equal protection claims, intermediate scrutiny has only ever been used to decide cases based on equal protection grounds.

Endorsement of Religion

It is a violation of the Establishment Clause for the government to endorse one religion over another and also to endorse religion over non religion. SCOTUS wants to prevent coercive endorsement of religion (one that might override individual choice). The Establishment Clause prohibits government endorsement of religion in a context that might prove coercive on an individual's conscience. Financial aid · Aid to religiously affiliated institutions—permitted if the aid is secular in nature, used only for secular purposes, and distributed according to religiously neutral criteria o Secular textbooks, computers, transportation, etc. found constitutional o The level of government entanglement is not a separate requirement; it is one factor to be considered when deciding whether religion is being advanced or inhibited · Tax exemptions—valid if equivalent to exemptions to other charitable institutions not advancing or inhibiting religion (i.e., cannot be available only to religious organizations) · Tax deductions and aid for parochial school expenses o Tax deductions—to reimburse tuition expenses only for parents of students in religious schools are invalid (deduction must be available to all parents) o Tuition vouchers—do not violate Establishment Clause if parents can decide whether to use them at religious or non-religious schools; however, states may deny state funds to a student pursuing a religious career without violating the Free Exercise Clause of federal constitution Public school activities—following practices have been held invalid as clearly promoting religion: (i) prayer and Bible reading; (ii) period of silence for "meditation or voluntary prayer" lacking any secular purpose; (iii) nondenominational prayer at school events; (iv) posting 10 Commandments on public-school classroom walls; and (v) prohibiting teaching of Darwinism § ccess to public school facilities by religious groups—if a public school allows student groups or organizations to use its facilities when classes are not in session, allowing a religious organization to use those facilities does not violate the Establishment Clause Religious displays · Ten Commandments—a display on public property is not allowed if it has a predominantly religious purpose · Government holiday displays—generally permissible unless a reasonable observer would conclude that display is endorsement of religion; context is key

Justiciability

Limitation—Eleventh Amendment. Prohibits citizens from one state suing another state in federal Need Standing to sue

Spending Power

Legislative Congress can condition federal funds to states and require states to implement certain regulations. · The Spending Power includes spending for the general welfare o general welfare just for tax and spending power. NO OTHER REASONS · Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause.

Commerce Power

Legislative Congress can regulate: · The channels of interstate commerce (highways, seaways, airways, etc.); · Instrumentalities of interstate commerce (cars, trucks, railroads, ships, etc.); and · Intrastate (and interstate) activity (economic or commercial) that has a substantially effect on interstate commerce. Substantial economic effect judged in aggregate. § question is whether aggregate activity of everyone doing same thing has substantial effect on interstate commerce, and answer is almost always yes. · Congress can regulate as long as there's a rational basis for concluding that total incidence of activity in aggregate substantially affects interstate commerce § Noneconomic activity cannot be aggregated; the activity itself must have substantial economic impact on interstate commerce. Not within Commerce Clause: For non-economic, non-commercial activity, Congress can regulate intrastate actions only by actually demonstrating a substantial effect on interstate commerce (substantial effect is presumed for economic or commercial activity). Thus, Congress cannot regulate purely intrastate, non-commercial, non-economic activity for which a substantial effect on interstate commerce hasn't been shown.

Necessary and Proper Clause

Legislative Congress has power to enact any legislation necessary and proper to execute any authority granted to any branch of federal gov't; not independent source of power

Enclave Clause

Legislative Under Enclave Clause, Congress has the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries. Among those powers is the power to tax or not to tax income earned within its boundaries.

Property Power

Legislative no express limit on power to dispose of US property; however, Congress may only take private property for public use with just compensation and to effectuate an enumerated power

Anti-Commandeering

Legislative states might claim that Congress is violating the 10th Amendment by forcing the state legislature to pass specific legislation § Congress cannot force states to adopt or enforce federal regulatory programs. It cannot commandeer state and local agencies to implement federal programs. § What can Congress do to enforce regulatory programs? It can bribe states through use of the spending power. It can adopt its own regulatory program and enforce it with federal officers.

Taxing Power

Legislative the right answer whenever Congress imposes a tax even when the tax is actually used to prohibit the good or activity in question. · The tax need only have reasonable relationship to revenue production. · Congress has plenary power to impose taxes to raise revenues (i.e., any public purpose) through General Welfare Clause · Congress may not tax goods exported to foreign countries. Under Export Taxation Clause, a tax or duty that falls on goods during course of exportation or on services or activities closely related to the export process is prohibited.

Power over aliens and citizenship

Legislative § Aliens Congress has plenary power over aliens (subject to Due Process Clause for an alien within the US) § Naturalization: congress has exclusive authority over naturalization

War and Defense Powers

Legislative § Provide for the national defense—in both wartime and peacetime (e.g., military draft and selective service) § Military courts and tribunals—to try enemy soldiers, enemy civilians, and current members of the U.S. armed forces; no jurisdiction over U.S. civilians; not all constitutional protections apply (e.g., right to jury trial or grand jury indictment) § National guard—power to authorize President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions; constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances (but limited by statute)

Right to Privacy

Marriage: There are all sorts of requirements for marriage (e.g., age or restriction on marrying close relatives), but substantial interference with the marriage—including same-sex marriage—is unconstitutional. Contraception: It is a fundamental right for everyone, whether married or not, to purchase contraceptives. Sexual intimacy: Perhaps not technically a fundamental right—the Supreme Court found that the government has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults, including same-sex couples. Abortion (undue burden test) · Roe v. Wade: A woman has a right to terminate her pregnancy until viability of the fetus. After that stage, restrictions can apply so long as there are exceptions to preserve the life and health of the mother. · States regulate abortion in a variety of ways, but they cannot impose an undue burden on the woman's right to terminate her pregnancy. o Informed-consent requirements are allowed o Twenty-four hour waiting periods are allowed o Parental notification requirements (for minors) are allowed. o Parental consent requirements are generally not allowed. § Narrow exception for requirement that an underage female get the consent of a parent or a judge, but requires the judge to give consent if the underage female understands the nature of the act. o Spousal requirements are not allowed. o Government financing of abortion is not required Parental rights: Parents have a fundamental right to raise their children as they see fit, including the choice of religious or private schools. · Can lose their rights through abandonment, abuse, or neglect · While parents do enjoy fundamental right to make decisions regarding care, custody, and control of children, including right to privately educate one's child outside public school, right is subject to reasonable educational standards imposed by state. The court must strike down any requirements that finds impose unreasonable educational requirements on homeschooling of children Family relations: Includes the right to live together with close relatives Obscene material: Fundamental right to read obscene material in the privacy of one's own home. · However, no fundamental right to purchase, sell, import, or distribute such material. · Does not apply to child pornography Refusal of medical treatment: Not clear whether this is a fundamental right, but there is a liberty interest in refusing medical treatment · No right to commit suicide

Commercial Speech

Most regulations of commercial speech are struck down. So long as the advertising is truthful and informational, it must be allowed. Test: Protected commercial speech can only be regulated if: · The commercial speech must concern lawful activity and be neither false nor misleading; · The asserted governmental interest must be substantial; · The asserted regulation must directly advance asserted interest; and · The regulation must be narrowly tailored to serve interest (meaning a "reasonable fit" between the government's ends and the means chosen to accomplish those ends). Misleading commercial speech: (unlike political speech) may be prohibited.

Appellate Jurisdiction

Mostly, jurisdiction of SCOTUS is appellate. Certiorari (discretionary) and direct appeal (mandatory) Certiorari · Almost all cases come to the Supreme Court by way of writ of certiorari. · The key factor is that granting a writ of certiorari is discretionary with the court. · Supreme Court is the only federal court that exercises discretionary jurisdiction. Limitations on the Supreme Court's appellate jurisdiction · Congress can make exceptions to the Court's appellate jurisdiction (i.e., Congress can effectively control the Supreme Court's docket (its appellate jurisdiction) by legislating exceptions to its appellate jurisdiction). Adequate and Independent State Grounds (AISG)

Regulation of the Media

No Special Privileges § Press and media have no special privileges. They have the same rights as everyone else. Regulation of the right to publish about matters of public concern is subject to strict scrutiny § Gag orders—subject to prior-restraint analysis; rarely upheld § Attending trials—the right to attend trials may be outweighed if the judge finds an overriding interest that cannot be accommodated by less restrictive means § Illegally obtained private info—permitted to publish if third party (unknown to publisher) obtained info and involves matter of public concern § No constitutional privilege to protect sources Broadcasters: Radio and television broadcasters are said to have a greater responsibility to the public; they can be more closely regulated than print and other media § Broadcasters may be sanctioned for airing "patently offensive sexual and excretory speech," even if such speech does not qualify as obscene § Public access stations are not considered to be state actors Cable television—content-based regulations of cable broadcasters are subject to strict scrutiny Internet—any regulation of Internet content is subject to strict scrutiny

Designated Public Forum

Not historically used for speech-related activities but has been opened for such use § Content-based regulations are subject to strict scrutiny. § Content-neutral regulations are subject to the time, place, and manner test; must be: · Narrowly tailored; · To serve a significant government interest; and · Leave open ample alternative channels for communication

Takings Clause

Private property shall not be taken for public use without just compensation [eminent domain] Government Action: Protects from government "taking" of private property § Includes taking land and regulatory takings by rezoning, prohibiting development, etc. Private Property: Usually involves land or other real property § Can be other property such as contract and patent rights or trade secrets Public use—basically anything the government wants to do with the property. It 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. § Includes health, safety, economic development, etc. Just compensation: fair market value at the time of the taking. § Only a portion has been taken—owner entitled to compensation for land actually taken and any loss in value of the land still owned Taking—This is where the controversy often occurs. o Taking versus regulation—If there is taking of property, compensation is required; if there is mere regulation on property, compensation is not required, even if the regulation reduces the value of the property. o Economic impact—The adverse economic impact of the government's action does not necessarily mean there has been a taking (e.g., a new prison built next door to a beautiful, countryside home). Many regulations can dramatically affect the value of property but that does not trigger a right to compensation. o Physical occupation—This is the key question. If the government physically occupies a private owner's property, then a taking has occurred and it owes just compensation. § If government physically occupies only a tiny portion of your property, it is still a taking. o No physical occupation—Generally, no physical occupation means that no taking has occurred. Zoning—Not a taking and no compensation is required, so long as the zoning advances legitimate interests and does not extinguish a fundamental attribute of ownership. o legitimate government purpose (health, safety, morals, and general welfare). o Variance: May be granted to allow the owner to continue the nonconforming use of the land § The owner must show an undue burden if the variance is not granted. o Takings Clause Claim: Must show that the zoning ordinance amounts to a regulatory taking

Establishment of Religion

Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion Facially Religious Preference: If statute shows a preference to one religion over another (or to religion over non-religion), strict scrutiny applies Three-Part Test of Lemon v. Kurtzman: Facially Neutral Statute [effect of favoring religion] § Does the law have a secular purpose? § Does the law have a primary effect that neither advances nor inhibits religion? § Does the law avoid excessive government entanglement with religion?

Twenty First Amendment

The Twenty-First Amendment, in addition to repealing prohibition, specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state. This amendment has been interpreted as giving a state the authority to regulate or outright ban the distribution and sale of alcoholic beverages within the state.

Alienage Suspect Classification

Requirement of U.S. Citizenship Classifications based upon U.S. citizenship are generally suspect classifications requiring compelling interest, but 2 important exceptions to strict scrutiny for alienage apply: · Federal government o Congress has plenary power over citizenship, immigration, and naturalization. o Federal classifications based on U.S. citizenship do not trigger strict scrutiny. o Federal classifications are valid unless arbitrary and unreasonable · State and local participation in government functions o These are jobs that have a particular relevance to the role of government and non- U.S. citizens can be barred from these jobs. o Exception: participation in government functions—rational basis standard applied § voting, serving on a jury, and working in any kind of government law enforcement position (including probation and parole officers), or as a public school teacher. Rule: States and localities cannot require U.S. citizenship for access to private employment or for government benefits Generally, the strict scrutiny test applies to state laws that discriminate against resident aliens. However, a growing exception exists requiring only a rational relationship to a legitimate state interest for state laws that restrict or prohibit a resident alien's participation in government functions.

One Person, One Vote

Requires districts of approximately equal size, approximately same number of voters Applies whenever you elect representatives by district · Examples include: U.S. House of Representatives; both houses of a state legislature; local governments when they elect representatives by district. o Exception: Special purpose governments—A highly specialized government (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage or water entitlements).

Equal Protection Fundamental Rights

Right to vote--one person, one vote; gerrymandering

Dormant Commerce Clause

Rule: In absence of federal regulation, state regulation of commerce is valid so long as: 1) There is no discrimination against out-of-state interests; 2) The regulation does not unduly burden interstate commerce; and 3) The regulation does not apply to wholly extraterritorial activity. No discrimination against out-of-state interests · Examples include: forbidding sale of only out-of-state products; taxing out-of-state products at higher rate; requiring manufacturing be performed in-state. · Can be discriminatory on its face or by its impact · Exceptions to no discrimination against out-of-state interests: o Necessary to an important state interest—a discriminatory state or local regulation may be upheld if: (i) an important local interest being served; and (ii) no other nondiscriminatory means are available to achieve that purpose; rarely upheld § Not discriminatory merely because the entire burden of a regulation falls on out-of- state businesses o State as Market Participant—When a state is buying or selling goods or services, it can choose to deal with only in-state persons. Examples include: Sale of cement produced by state-owned plant only to in-state purchasers; garbage stored in state-owned landfill limited to in-state garbage; law requiring 50% local workforce on state-financed construction projects. o Subsidies—A state can always choose to subsidize only its own citizens (for example, welfare benefits or in-state college tuition). o Traditional government function—state and local regulations can favor state and local government entities (but not private entities) if entities are performing a traditional government function (e.g., waste disposal) o Federal Approval—Remember, the Dormant Commerce Clause applies only in the absence of federal action. If Congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests. No undue burdens on interstate commerce · Non-discriminatory state regulation of commerce is almost always upheld. · Only when it is so outrageously costly relative to the benefits of the regulation is a non-discriminatory state regulation struck down as an undue burden on interstate commerce. · court will balance: o The purpose of the statute; o The burden on interstate commerce; and o Whether there are less restrictive alternatives No regulation of wholly extraterritorial activity · A state may not regulate conduct occurring wholly beyond its borders.

Sexual Orientation

SCOTUS ruled that the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity, but has not resolved the issue of whether discrimination based on sexual orientation is subject to heightened scrutiny Rational basis test is generally easily passed. However, recent Supreme Court cases have made exceptions in the field of sexual orientation. (rational basis with teeth) · In the 2003 Lawrence case, the Supreme Court struck down laws criminalizing homosexual sodomy using language suggesting the laws did not pass the rational basis test as they reflected prejudice, not a legitimate reason for the laws. · In 2013 Windsor case, Court used same approach in striking down federal Defense of Marriage Act (DOMA). Court applied a version of the rational basis test "with teeth" suggesting that because the motivation behind the federal DOMA was animus and prejudice, the law was not a rational plan of government. Laws against sexual orientation might be struck down as irrational because they are not supported by reasons other than mere prejudice.o Age discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under the Equal Protection Clause.

State Action

Significant state involvement § Sufficient mutual contacts between conduct of a private party and gov't such that gov;t is pervasively entwined with the entity and (i) constitutional standards should apply to the private actor; or (ii) a mutual benefit results (e.g., joint venture); or § The state creates a private entity by special law for the furtherance of governmental objectives and retains permanent control of the entity § Guidelines · Mere licensing or regulation of a private party is not state action · The state must act affirmatively to facilitate, encourage, or authorize the activity · 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. Insignificant state involvement—businesses that the government substantially regulates or to which it grants a monopoly; nursing homes that accept Medicaid; schools receiving government funds but are operated by a private corporation

Standing to Sue

Standing requires injury, causation and redressability 1.Injury in fact · Almost anything can be injury, especially if Congress says so (either past or future). · Must be concrete and particularized (not abstract), but need not be economic o If your freedom of movement or enjoyment of public space is impaired, that constitutes injury. · Mere ideological objection is not injury. o Needs to be actual and imminent if future · An organization has standing if its members have standing. 2. Causation · A defendant's conduct has caused or will cause the injury. 3. Redressability · A court can remedy or redress the injury. · If the injury is in the past, the remedy is damages · If future injury is threatened, the remedy is an injunction · Past injury does not give automatic standing to seek an injunction for future injury. To get an injunction, you must show that it will happen again. Federal taxpayers always have standing to challenge their own tax liability. Taxpayers do not have standing to challenge government expenditures. o Narrow exception under the Establishment Clause: An establishment of religion challenge to specific congressional appropriations can be raised by any taxpayer. (Note also that state courts often allow municipal taxpayers to challenge a municipality's expenditures.) Legislative standing o Legislators do not have standing to challenge laws that they voted against o In some circumstances, the legislature itself as a body may have standing, if the claim concerns its institutional functions. § Occasional legislature standing, but no legislator standing. "Third-party standing" refers to the question of whether you can raise the rights of someone else. o Generally, the answer is no o Exception: § Parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction. § Third party is unable to assert own rights § Special relationship between P and third party § P's injury adversely affects P's relationship with third party Organizational Standing o 1) Individual members have standing; o 2) Claim is related to the purpose of the organization; and o 3) The individual members are not necessary to adjudicate the claim Section 1983 Claim: doesn't provide any substantive rights; it provides method to enforce substantive rights granted by constitution and other federal laws o Proper D: individual gov't employees at any level of gov't, in individual capacities; includes municipalities and local gov'ts o Color of state law: P must show alleged deprivation was committed by person acting under color of state law (basically identical to state action)

Immunities and Privileges

The President · Has absolute immunity from liability for official acts (broadly construed) · Has no immunity for acts done prior to taking office · Has an 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) · The President may be subject to such a suit even while in office Judges: Judges have absolute immunity for all judicial acts, but may be liable for non-judicial acts (e.g., employment discrimination). Legislators: United States Senators and Representatives (not state legislators) are protected by the speech or debate Clause. · Senators and Congressmen and their aides cannot be prosecuted or punished in relation to their official acts. Official acts of a federal legislator cannot be introduced into evidence.

Privileges and Immunities of National Citizenship

The Privileges or Immunities of national citizenship under the 14th Amendment has no modern content and is never a strong answer that something is unconstitutional on the bar exam. national citizenship § Applies only to "citizens" (i.e., not corporations or aliens) § Protects citizens from infringement by the states upon the 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 right to travel

Regulation of Content

There are some categories of speech that can be regulated because of content: obscenity; incitement; fighting words; defamation; commercial speech;

Fundamental Rights

Travel, Vote and Ballot Access, Privacy, Second Amendment

Legislative Veto

Unconstitutional; It arises when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution · If Congress wants to override executive actions, it must change the law (so that the President has an opportunity to veto the new legislation). · Congress cannot evade the President's guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution. · It is unconstitutional for Congress to legislatively veto an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

Enabling Clause

Under the 14th Amendment, Section 5—Congress may pass legislation to enforce equal protection and due process rights (overriding state statutes)

Vagueness and Overbreadth

Vagueness: Vague laws are ones that give no clear notice of what is prohibited and thus violate due process. Overbreadth: Overbroad laws are ones that go too far in regulating speech. These laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the First Amendment. · Overbroad statutes may be challenged as "facially invalid" (even by those who are validly regulated) to prevent a chilling effect on protected speech

Racial Gerrymandering

Vote Dilution: Drawing districts to scatter minorities so that they are not a critical mass in any one district. If done with a discriminatory purpose, it's unconstitutional. Voting Rights Act: Requires racial gerrymandering to ensure minority success by creating majority-minority districts. o Rule: Race may be a factor in drawing district lines, but not the predominant or only factor. o Other factors include compactness and observing local, political subdivisions o A bizarrely shaped district may be evidence of a predominant racial purpose.

Right to Vote

Voting is a fundamental right to all citizens age 18 and over. · Poll taxes are unconstitutional because they burden the fundamental right to vote. · Short-term (e.g., 30 days) residency requirements are permitted. · Congress controls the residency requirements for presidential elections. States control residency requirements for all other elections. · Despite being fundamental right, strict scrutiny doesn't apply to all laws that restrict this right o The more significant government restriction, greater degree of scrutiny

Right to Travel

We have a fundamental right of interstate travel and settlement. § States can impose reasonable residency requirements for political participation and governmental benefits · Most are 30-90 days; 1 year is too long for everything except in-state tuition and jurisdiction to issue divorce § All residents have a right to be treated equally. A state cannot have a tax scheme that favors long-term residents over recently arrived residents.

Wealth Non-Suspect Classification

Wealth/Poverty is not a suspect or quasi-suspect classification, but the government has to waive filing fees for indigents when charging the fees would deny a fundamental right. Examples include: divorce (because marriage is a fundamental right); transcript for appeal of a criminal conviction (because appellate review is a fundamental right); transcript for appeal of the termination of parental rights. · Bankruptcy filing fees do not have to be waived.

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. · There must be a genuine likelihood of imminent violence by a hostile audience · Watch for unconstitutionally vague and/or broad (laws against "hate speech").

Incitement to Violence

advocates use of force or unlawful action if: § Directed to inciting or producing imminent lawless action; and § Is likely to incite or produce such action (i.e., creates a clear and present danger)

Injunction

the test for the constitutionality of injunctions in public forums depends on whether the injunction is content-neutral or content-based § Content-neutral—whether it burdens no more speech than is necessary to achieve an important governmental interest § Content-based—it must be necessary for the government to achieve a compelling governmental interest

Abstention

fed court may abstain from deciding claim when strong state interests are at stake

Second Amendment

guarantees an individual's right to possess a firearm, subject to lawful regulations § use that firearm for traditionally lawful purposes, such as self-defense within the home, § Federal and state governments may impose conditions and qualifications on commercial sale of arms, and may prohibit the possession of firearms by felons and the mentally ill.

Appropriation

if Congress explicitly mandates expenditure of funds, the President cannot impound those funds (e.g., refuse to spend them) · If a statute gives President discretion to spend or withhold funds, he may do so. · But, if a statute unambiguously requires that certain funds be spent on certain purposes, then the President cannot refuse to do so. There is no power to impound (withhold) funds.

Race, Ethnicity, or National Origin Suspect Classification

laws that disadvantage minorities will be struck down. School desegregation: De jure (by law) segregation is unconstitutional. De facto segregation is not (usually by residential housing patterns). Affirmative action: It is a racial classification; an effort to benefit a racial or ethnic minority. · Triggers strict scrutiny and requires a compelling interest · Specific past discrimination: Affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action. o General societal discrimination does not justify affirmative action. · Affirmative action is allowed in the context of preferential admissions to colleges and universities. o Preferential admissions are allowed if necessary to achieve a diverse student body and diversity is essential to the education. § Must be a strong showing that racial preferences are essential to achieving a diverse class. § Racial preferences must be "holistic" (can be built in to an evaluation if every student is evaluated individually in a holistic way) and flexible. § Quotas are not allowed. § Separate admissions tracks or procedures for minority applicants are not allowed. o Preferential admissions not allowed for secondary schools (though schools may be located and attendance zones created to maximize diversity).

Bill of Attainder

legislative punishment imposed without judicial trial and is unconstitutional

Exaction

local government may exact promises from a developer in exchange for construction permits Does NOT constitute a taking if there is: a) An essential nexus between legitimate state interests and conditions imposed; and b) A rough proportionality between burden on owner and the impact on the community

Government Speech

need not be viewpoint-neutral, but is subject to the Establishment Clause o The First Amendment restrictions basically do not apply to the government as a speaker. o The government does not have to accept all monuments donated by a private person simply because it accepts one—when gov't is controlling message, it is entitled to say what it wants. o But specialty license plates bearing messages requested by purchasers are still government speech, so the government can refuse to issue plates that would be offensive to other citizens.

Right to Ballot Access

no fundamental right to hold office through election or appointment, but all persons do have a constitutional right to be considered for office without the burden of invidious discrimination · States can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidates can reasonably comply. · If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional.

Declaratory judgments

not prohibited, but challenged action must pose real and immediate danger to party's interest

Right Not to Speak

protected by 1st Amend (i.e., not reciting Pledge of Allegiance at school) § However, state can compel private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity § Although one can be compelled to join or financially support a group with respect to one's employment, one cannot be forced to fund political speech by that group

Prior Restraings

regulation of speech that occurs in advance of its expression Generally presumed to be unconstitutional, with limited exceptions The limited exceptions require at a minimum that: (i) there is a particular harm to be avoided; and (ii) certain procedural safeguards are provided to the speaker, e.g., · The standards must be narrowly drawn, reasonable, and definite; · The censoring body must promptly seek an injunction; and · There must be prompt and final judicial determination of validity of the restraint. Burden is on government to prove that material to be censored is not protected speech

Full Faith and Credit Clause

states do not have to follow other states' laws, but they do have to give full faith and credit to judgments rendered by other states' courts, so long as rendering court had jurisdiction to render a final judgment on the merits. Judgments—out-of-state judgments must be given in-state effect if: · Court rendering judgment had jurisdiction over the parties and subject matter; · The judgment was on the merits; and · The judgment was final. Laws (public acts)—the Constitution prohibits state courts of general jurisdiction from refusing to hear a case solely because the suit is brought under a federal law, and a state may not discriminate against rights arising under federal laws

Campaign Finance

use of money to support a political campaign is political speech and the regulation of that money raises First Amendment issues. o Contributions can be regulated, provided that limits are not unreasonably low. [intermediate] o Direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated. [strict scrutiny § The rationale is to prevent corruption: a candidate could theoretically act in a certain way in exchange for a larger, direct contribution. § Independent expenditures cannot be regulated. § Coordinated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated. o The constitutional protection of direct independent expenditures applies not only to individuals, but also to corporations, including nonprofits, and unions. o SCOTUS has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures.

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 2/3 vote of the Senate. · Impeachment and conviction lead to removal from office. No other penalty applies.