Constitutional Law

ESTABLISHMENT CLAUSE (OPENING COURT SESSIONS)

***APPLY LEMON TEST A court's statements establishing religion before all court proceedings fails the Lemon Test and violates the Establishment Clause. Acknowledgment of Gods of the major religions, advances religion and is non-secular. Further, it inhibits the religious beliefs of minor religious and those that recognize no God i.e. atheists. Moreover, excessive government entanglement is present because the judge is lending his authority of his office and the court to the statement, which he drafted and administered (in his official capacity as a judge). Judge's Defense: Judge will try to use "In God we Trust" - this will fail. He will also try to say, it is not mandatory - this will also fail because religious messages directed towards a captive audience (i.e. here) must suffer in silence while others observe religion. -Talk about stigma of entering and exiting the courtroom. -Talk about judge's requirement, and facing possible bias if non-observers leave. (they are essentially force to observe)

ESTABLISHMENT CLAUSE (PRAYER IN PUBLIC SCHOOLS) + EQUAL ACCESS RULE

***APPLY THE LEMON TEST (if not facially discriminatory) Nothing in the constitution prohibits a student from voluntarily praying before, during, or after school, but what the constitution does prohibit are state actors (i.e. school teachers and officials) "requiring or denying" students the opportunity to do so. Religious activities mandated in primary and secondary public schools are recognized to be violations of the Establishment Clause, along with prayer and bible reading in school. It does not matter whether the act or prayer is voluntary or involuntary, nor whether the prayer is designated as a "silent meditation or prayer." "EQUAL ACCESS RULE" If a public school allows members of any organization to use school property when classes are not in session, it must give religious organization the same "equal access. The school cannot deny a religious organization, or require it seek permission, to use the school's property merely because religious topics will be discussed.

FUNDAMENTAL RIGHTS

-Bill of Rights -Right to Personhood and Intimacy -Right to Due Process of the Law -Right to Vote -Right to Marry -Right to Procreate -Right to Raise a Family -Right to Privacy -Right to Travel -Right to Religion -Right to Freedom of Expression -Right to Freedom of Association

EQUAL PROTECTION (RATIONAL BASIS) (HYPOS)

-Same sex dating at senior prom -Nationally vs. Locally owned establishments (Big Mart) -Property owners who own less/more than two acres -Classifications based on age and wealth -Dropouts vs. Grads

STANDING

1) Injury in Fact (i.e. particularized injury) 2) Causation (i.e. fairly traceable to challenged action) 3) Redressability (i.e. a favorable decision will remedy P's injury)

EXECUTIVE ORDER (PRESIDENTIAL EXECUTIVE POWER)

1) Where the President acts with the "express or implied authority of Congress" --> his authority is at its fullest and his acts are likely to be upheld. 2) Where the President acts with the "silence of Congress" --> his action will be upheld to the extent that he does not "usurp" the powers of another branch of government. 3) Where the President acts "against express will of Congress" --> he has little authority and his action will likely be invalid.

FIRST AMENDMENT (OVERBREADTH)

A law is overbroad if it punishes constitutionally protected speech or conduct along with speech or conduct that the government may limit to further a compelling government interest. A statute that is broadly written which deters free expression can be struck down on its face because of its chilling effect even if it also prohibits acts that may legitimately be forbidden. If a statute is overbroad, the court may be able to save the statute by striking only the section that is overbroad. If the court cannot sever the statute and save the constitutional provisions, it may invalidate the entire statute.

FIRST AMENDMENT (VAGUENESS)

A law may be declared unconstitutional if it is too vague. A law is too vague when the boundaries of the speech and its limit cannot be determined clearly such that it fails to give persons reasonable notice of what is prohibited. A law can also be too vague when the regulation give officers "too much unfettered discretion" in applying the law.

DORMANT COMMERCE CLAUSE (DISCRIMINATORY)

A law/regulation can be discriminatory either "facially" or in its "effect or purpose." The law will be invalid unless the state can demonstrate: 1) the law is "necessary" to achieve an important "non-economic interest" (i.e. "non-protectionist" state interest such as health or safety); AND 2) that there are "no other reasonable alternatives."

TAKINGS CLAUSE (FIFTH AMENDMENT) (PHYSICAL)

A physical taking (i.e. takings per se) occurs when the government "confiscates" or "physically occupies" property. Any actual permanent physical occupation of private property by the government is deemed a taking, no matter how slight the encroachment. Is there a taking? Yes? Is there a public use/purpose? Yes? Is there just compensation? FMV time of taking

FIRST AMENDMENT (PRIOR RESTRAINT) (GENERAL)

A prior restraint is a court order or regulation that prevents speech from occurring. Prior restraints are considered by the USSC to be the most serious and least tolerable infringement of First Amendment rights, and are generally found to be presumptively unconstitutional. Most prior restraints are in the form of license or permits, or judicial injunctions. (Note: Ask whether the person's freedom of expression/speech deprived/restrained "before" it occurred?

STATE ACTION DOCTRINE (GENERAL)

A private school will not likely exercise state action by possibly violating constitutional rights even though the school receives 50% funding from state and federal government. State action is the principle that constitutional limitations apply only to government, and not private individuals. However, there are two exceptions to this general rule. 1) The Public Function Exception 2) The Entanglement Exception

FREEDOM OF SPEECH (FIRST AMENDMENT) (CONTENT NEUTRAL)

A regulation is content neutral when it is applicable to all speech. Content neutral regulation must meet a "modified intermediate scrutiny" test which requires that: -an important governmental interest unrelated to the suppression of speech; and -it does not "substantially burden more speech than is necessary" or is "narrowly tailored" to further those interests i.e. No demonstrations allowed in the park.

FREEDOM OF SPEECH (FIRST AMENDMENT) (COMMERCIAL SPEECH)

Advertisements are a from of protected commercial speech. To the extent that the commercial speech is truthful and lawful, it is subject to regulation that serves a "substantial government interest" that "directly advances the asserted interest" and is "narrowly tailored to that interest."

SUPREMACY CLAUSE (PREEMPTION) (CONFLICT PREEMPTION)

Conflict preemption is when there is a conflict between federal and state law. In such a case, the state law is preempted.

FREEDOM OF SPEECH (FIRST AMENDMENT) (CONTENT BASED)

Content based restriction of speech can either be a "subject matter" or "view point" restriction. If the law: 1) applies to a particular speech because of the topic discussed or message expressed (aka "subject matter restriction"; 2) regulates the ideology of the message (aka "view point restriction).

SUPREMACY CLAUSE (PREEMPTION) (EXPRESS PREEMPTION)

Express preemption occurs when there is a federal law that "expressly preempts" a state law by "expressly" providing that the states may not adopt similar laws concerning the subject matter of federal legislation.

TIME PLACE AND MANNER RESTRICTION (FIRST AMENDMENT) (PUBLIC/DESIGNATED PUBLIC FORM)

If the TPMR is content based --> STRICT SCRUTINY If the TPMR is content neutral--> Ask, Is regulation a "reasonable restriction" that serves an "important governmental interest" and "leaves open "ample alternative channel" for communication of information. ***Could also be a Designated Forum, which are facilities "intentionally opened to a wide class of persons" by the government for "expressive activity" such as a public hall meeting. To determine if a facility is a designated public forum, the focus is on the intent of the government.

EQUAL PROTECTION CLAUSE (14TH AMENDMENT) (STRICT SCRUTINY)

If the classification involves a "suspect class" or "fundamental right," the court must use STRICT SCRUTINY. The law will be upheld if: 1) "necessary" to achieve a "compelling" government purpose, and 2) "narrowly tailored" (i.e. least restrictive alternative) means of accomplishing compelling governmental interest Suspect Class: Race or Nationality Fundamental Right: Civil Liberties

EQUAL PROTECTION CLAUSE (14TH AMENDMENT) (INTERMEDIATE SCRUTINY)

If the classification is based on "gender" (i.e. quasi-suspect class), the intermediate scrutiny test will be applied. The law will be upheld if it is "substantially related" to an "important governmental interest." An added caveat for quasi-suspect class discrimination is that there must be an "exceedingly persuasive justification" for the gender classification. This part of the test requires that the laws justification: (a) be genuine, not hypothesized or invented and (b) does not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

DORMANT COMMERCE CLAUSE (INTERMEDIATE)

If the legislation does not discriminate, but rather, it "unduly burdens" interstate commerce, courts apply a balancing test. Thus, the law will up struck down if the "burden on interstate commerce outweighs its local state benefits."

SUPREMACY CLAUSE (PREEMPTION) (IMPLIED PREEMPTION) (GENERAL)

Implied preemption can be divided into three categories. 1) Conflict Preemption 2) Objective Preemption 3) Field Preemption

EQUAL PROTECTION CLAUSE (14TH AMENDMENT) (RATIONAL BASIS TEST)

In all other cases, the rational basis test will be applied, which provides that a law will be upheld if it is "rationally related to any conceivable government interest."

SUPREMACY CLAUSE (PREEMPTION) (OBJECTIVE PREEMPTION)

In objective preemption the state law will be deemed preempted if it "stands as an obstacle" to an objective and execution of a federal law.

FIRST AMENDMENT (PRIOR RESTRAINT) (STRICT SCRUTINY)

Judicial Orders (i.e. injunctions) directing an individual not to engage in expression, on pain of contempt, must meet "strict scrutiny." TEST: The law will be struck down unless there is a compelling governmental interest achieved by narrowly tailored means (i.e. no lesser reasonable alternative).

FIRST AMENDMENT (FREE EXERCISE CLAUSE)

Laws that burden the free exercise of one's religion must be: 1) Neutral in language; and 2) Generally applicable to everyone. However, even if both of these requirements are met, a law impinging on the free exercise of religion may still be struck down if the claimant can prove that "intent/motive" of the law is to interfere with religious practices. In either case (facially or intent/motive), courts must apply the "strict scrutiny" test. (Compelling governmental interest achieved by a narrowly tailored means)

TIME PLACE AND MANNER RESTRICTION (FIRST AMENDMENT) (LIMITED PUBLIC FORUM)

Limited Forums are facilities "intentionally opened" by the government for either "certain" groups or "certain" subject (i.e. public university or school meeting facilities). In these cases, the governmental restriction must be (1) a "reasonable restriction" (reasonably related to a legitimate government purpose) and (2) view-point neutral (i.e. may not limit the communication to only one view). EX: may prohibit speech regarding abortions; may not allow speech in favor of, but not against abortion; bulletin board at city bus station.

EXECUTIVE ORDER (EX POST FACTO CLAUSE)

No state or federal government may pass an ex post facto law, which is a legislation that "retroactively alters" the criminal law in a "substantially prejudicial manner" by: 1) making criminal an act that when committed was innocent; 2) prescribing greater punishment for an act than what was prescribed for the act when it was committed; or 3) reducing the evidence required to convict a person of a crime from what was required at the time the alleged crime was committed.

TIME PLACE AND MANNER RESTRICTION (FIRST AMENDMENT) (NON-PUBLIC FORUM)

Nonpublic Forums are public property which is not by tradition or designation a forum for public communication such as military bases or governmental offices (i.e. properties which the government can close to all speech activities). Here, the governmental restriction must be a reasonable restriction (reasonably related to a legitimate government purpose) and (2) view-point neutral.

TAKINGS CLAUSE (FIFTH AMENDMENT) (REGULATORY)

Regulatory takings are those which leave the landowner with no reasonable viable economic use of his property. Governments will try to argue that the taking is really a non-compensable land use regulation opposed to an actual taking. Such a dedication shall be considered a taking, and as such subject to just compensation, unless the state can show that the dedication relates to a legitimate governmental interest and that the adverse impact of the proposed development on the area is "roughly proportional" to the loss caused to the injured property owner. Is there a taking? Yes? Is there a public use/purpose? Yes? Is there just compensation? FMV time of taking Is there a land use dedication? Yes? Is there a legitimate governmental interest? Yes? Is adverse impact of proposed development "roughly proportional to loss caused to property owner? Yes --> taking; No--> no taking.

COMMERCE CLAUSE (GENERAL) (LOPEZ TEST)

The CC gives Congress the power to regulate commerce among the several states. Under the Lopez Test, there are three categories of valid interstate commerce regulation - Regulation of the: 1) Channels (roads, highways, waterways, railways, etc.) 2) Instrumentalities (trucks, buses, trains, planes, boats, etc.) 3) Interstate activities that substantially effect interstate commerce

DORMANT COMMERCE CLAUSE (GENERAL)

The DCC, the dormant/negative aspect of the Commerce Clause, prohibits states from "discriminating" or placing "undue burden" on interstate commerce. To determine which constitutional analysis to provide, the court must first look at whether the regulation/restriction is "discriminatory" against non-residents or "unduly burdensome" against interstate commerce.

PROCEDURAL DUE PROCESS (14TH AMENDMENT)

The Due Process Clause is applicable to the states through the 14th Amendment, provides that no person shall be deprived of life, liberty, or property without due process of law. The procedural component of the DPC protects a claimant's right to receive "fair and adequate notice" and a "meaningful opportunity to be heard before a fair and neutral decisionmaker." -The claimant must have suffered a loss of a protected life, liberty, or property interest. -The claimant was not afforded "adequate notice" -The claimant was not afforded a "meaningful opportunity to be heard" before a "fair and neutral decisionmaker" -The requested process would have "prevented or remedied" the deprivation

SUBSTANTIVE DUE PROCESS (14TH AMENDMENT)

The Due Process Clause is applicable to the states through the 14th Amendment, provides that no person shall be deprived of life, liberty, or property without due process of law. The substantive component of the DPC requires that laws be "reasonable" and "not arbitrary." When the substantive law impinges on a fundamental right, courts will strike down the law unless it meets the strict scrutiny test: Compelling governmental interest achieved by narrowly tailored means. In all other cases, courts apply the rational basis test: rationally related to any legitimate/conceivable governmental interest.

EQUAL PROTECTION CLAUSE (14TH AMENDMENT) (GENERAL)

The Equal Protection Clause, applicable to the states through the Fourteenth Amendment, provides that no state shall deny "any person" within its jurisdiction equal protection of the law. Here, courts use one of three constitutional tests (strict, intermediate, or rational basis tests) depending on the classification of discrimination.

TAKINGS CLAUSE (FIFTH AMENDMENT) (GENERAL)

The Fifth Amendment provides that private property shall not be taken for public use without just compensation. There are two types of takings: Physical and Regulatory. Public use will be found as long as it is "rationally related" to any conceivable government interest.

FREEDOM OF SPEECH (FIRST AMENDMENT) (GENERAL)

The First Amendment Provides that Congress shall make no laws abridging the freedom of speech. The USSC has recognize two types of regulations on speech: 1) Content Based 2) Content Neutral

ESTABLISHMENT CLAUSE (GENERAL) + (LEMON TEST)

The First Amendment provides that Congress shall pass no law respecting an establishment of religion. (Facially Discriminate) If the law is facially discriminatory, in that "facially differentiates" among religious groups, the law will be struck down unless it meets strict scrutiny (compelling governmental interest achieved by narrowly tailored means). (Does not Facially Discriminate) If the law does not facially discriminate, courts shall apply the three prong Lemon Test. The law MUST PASS ALL THREE PRONGS to survive constitutional muster. 1) The law must have a secular purpose. 2) The law's primary effect can be to neither advance nor inhibit religion. 3) The law must not foster an excessive governmental entanglement with religion.

PRIVILEGES AND IMMUNITIES CLAUSE

The PIC provides that the "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This clause prevents/limits the discrimination of out-of-staters regarding their "fundamental rights." Notably, consider the language of the clause, (i.e. "citizens") means that the PIC available to natural persons who are USC. Thus, corporations, business entities, and undocumented immigrants are not protected by the PIC. Fundamental rights in the context of the privileges and immunities clause means the "rights relating to important commercial activities," "pursuit of a livelihood," and "civil liberties." TEST: (1) If there is a "substantial justification" for the difference in the treatment (i.e. nonresidents are either cause or are part of the problem), and (2) there are "no lesser restrictive means" to remedy the problem.

SUPREMACY CLAUSE (PREEMPTION) (GENERAL)

The Supremacy Clause provides that the laws of the Const. and the US, shall be the supreme law of the land. Thus, US and Const. law preempt state laws. Preemption can be "expressed" or "implied."

STATES' RESERVE POWERS (TENTH AMENDMENT)

The Tenth Amendment provides that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

TIME PLACE AND MANNER RESTRICTION (FIRST AMENDMENT) (GENERAL)

The USSC has found that Time, Place, and Manner restrictions on protected speech is permissible - within reason of course. The level of constitutional scrutiny is based on whether the form is a public/designated public forum, limited public forum, or a non-public forum.

FREEDOM OF SPEECH (FIRST AMENDMENT) (SCHOOLS)

The USSC has held that, students do not leave speech rights when entering the school, but this right is not absolute. As a matter of pedagogical concern, a school may regulate student conduct or speech upon a showing that the conduct or speech by the student: 1) "materially and substantially interfere" with school operations; 2) involves "substantial disorder" or "substantially impinges" on the fundamental rights of other students; and 3) is "inconsistent" with the school's basic education teachings, mission or purpose.

FREEDOM OF SPEECH (FIRST AMENDMENT) (SPEECH AS SYMBOLIC CONDUCT COUPLED WITH GOVERNMENT EMPLOYEE)

The freedom of speech clause applies to symbolic speech as well as verbal or written communication. A regulation of symbolic speech will be upheld if it passes the "intermediate scrutiny" (same as content neutral) (i.e. an important governmental interest unrelated to the suppression of speech AND [does not substantially burden more speech than is necessary] or is [narrowly tailored to further those interests]. However, special rules apply when the government seeks to punish or restrict the free speech (symbolic) of a government employee. In these cases, courts apply a special test. If the government employee's speech "does not" involve a "public concern" --> courts give government employers "broad discretion" to punish or regulate speech that is "disruptive to the workplace." If the government employee's speech "involves" a "public concern" --> courts use a "balancing test" to weigh the right of the public employee to speak freely on a matter of public concern against the state's interest in efficiently performing a state function.

FREEDOM OF SPEECH (FIRST AMENDMENT) (FREEDOM NOT TO SPEAK) (COURTROOM PRAYER HYPOS)

The freedom of speech includes not only the right to speak, but also the right to refrain from speaking or endorsing beliefs with which one does not agree with. Further, the government may not compel an individual to express a message with which he disagrees. As such, effectively requiring a person to distinguish themselves by not participating in a prayer, and enduring "looks of disapproval" impinges on that individual's fundamental right. Thus, the burden must pass STRICT SCRUTINY. Compelling state interest achieved by narrowly tailored means.

ESTABLISHMENT CLAUSE (LEGISLATIVE/TOWN HALL MEETING)

The opening of sessions of state legislative and other deliberative public bodies with prayer is "deeply embedded" in the "history and tradition" of this country, and as such, are not violative of the Establishment Clause. Those who do not wish to participate must not be forced to, but the prayer is constitutional nonetheless. (talk about adult factor at legislation and town hall meetings - factors in favor of constitutionality presumption)

SUPREMACY CLAUSE (PREEMPTION) (FIELD PREEMPTION)

Under field preemption, state laws are preempted when there is "clear congressional intent" that federal law should "exclusively and completely regulate a field" (i.e. Patent Law, Immigration, Indian Affairs, ERISA, etc). FDA Hypo: Not expressed because no express legislation. Not field (impled) because no facts indicating federal legislation is "so extensive" that entire field is preempted. No conflict (implied) because while it does restrict the "channels of distribution" it is not stand as an obstacle i.e. not prohibiting the use. Best argument is to prove that a primary purpose of the FDA regulations is not only to insure the availability of the drugs once approved by the FDA, but also to permit a "national market in FDA approved drugs.

CONTRACTS CLAUSE

Under the CC, no state shall pass any law that substantially interferes or impairs the obligations of a contract. Most notably, the CC DOES NOT APPLY TO THE FEDERAL GOVERNMENT, ONLY STATE GOVERNMENTS. Further, the CC does not limit a state's authority to regulate "future contracts," only "existing" ones. The test for both public and private contracts, except that regulations substantially interfering with public contracts are subject to a "more heightened scrutiny" because states cannot legislate to "undo" or reduce its own contractual obligation. Three Part Test: 1) Does the state law substantially impair the contractual relationship between the parties? If yes, then ask 2) Does the state law serve an important legitimate public purpose? If yes, then ask 3) Is the state law "reasonably" and "narrowly tailored" towards achieving that goal? NOTE: -Laws making a contract or property less value does not violate the CC if the land owner still can derive some utility - damage must be "substantial." -Lawyers involved in public contracts do not violate CC because there is an absolute right for a client to terminate counsel.

EXECUTIVE ORDER (EXPULSIONS AND VACANCIES)

Under the Constitution, each house of Congress may expel is own members with 2/3 vote of the members of that house. The separation of powers doctrine, the president has no power to expel a member of congress. Further, Senate vacancies must be filed in accordance with the 17th amendment, while vacancies in the House are remedied by a Writ of Election (i.e. a special election).

STATE ACTION DOCTRINE (ENTANGLEMENT EXCEPTION)

Under the EE, private actors must comply with the constitution if it is performing a that has "authorized, encouraged, or facilitated" the unconstitutional actions. ***The court finds sufficient entanglement where a state constructed and leased a facility to a private entity - the facility was also maintained using public funds. ***Also be weary of government employee involvement.

STATE ACTION DOCTRINE (PUBLIC FUNCTION EXCEPTION)

Under the PFE, a private entity must comply with the constitution if it is performing a task that has been "traditionally and exclusively" done by the government.

DORMANT COMMERCE CLAUSE (MARKET PARTICIPANT EXCEPTION)

Under the market participant exception, states are allowed to favor their own citizens, when the state is a market participant. The state is a market participant when it is: 1) buying or selling products 2) hiring labor 3) giving subsidies 4) performing traditional governmental functions (i.e. waste disposal)

FIRST AMENDMENT (PRIOR RESTRAINT) (INTERMEDIATE SCRUTINY)

When a prior restraint is in the form of license or permits required before one may engage is speech, the administrative requirement must meet intermediate scrutiny. TEST: The law will be struck down unless it is "substantially related: to an "important government interest purpose or interest."

EXECUTIVE ORDER

Whenever there is an executive order in the fact pattern always talk about the following three: 1) Executive Power/Authority 2) Congressional Expulsions and Vacancies 3) Ex Post Facto Clause