Constitutional Law

What does the commerce power cover?

(i) Interstate commerce; i.e., the channels the instrumentalities of interstate commerce; and (iii) any activity that substantially affects interstate commerce, including entirely intrastate commerce that, even incidental conduct that affects interstate commerce in the aggregate?

What are ex post facto laws?

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

What are the exceptions to mootness?

-Controversy is "capable of repetition" but is "evading review," -The defendant voluntarily ceases its illegal or wrongful action -Collateral legal consequences can be imposed based on the challenged conviction -Named P's claim in a class action suit is resolved (i.e., that fact does not render the entire class action moot)

What are fundamental rights within the meaning of the due process clause of the fourteenth amendment?

-First Amendment -Second Amendment -Voting and ballot access -Interstate travel -Privacy (Includes marriage, contraception, intimate sexual behavior, abortion (undue burden test), parental rights, family relations, obscene material, right to refuse medical treatment, and right to avoid disclosure of personal medical information)

How are statutes limiting campaign contributions viewed?

-Statutes limiting campaign contributions are subject to intermediate scrutiny -Laws may limit contributions to individual candidates, but not to ballot measures

When is state law impliedly preempted?

1. Field preemption: evidence that Congress intended to fully occupy the field , leaving no room for supplemental state laws. 2. Conflict preemption: (a) directly, because it's impossible to comply with both laws; (b) indirectly, because the state law frustrates federal law's purpose

What classifications are suspect?

1. Race, ethnicity, and national origin 2. State classifications based on citizenship status (except for government participation, which gets rational basis review)

When is redressing discrimination a compelling state interest?

1. Remedying its own history of racial discrimination 2. Remedying past intentional racial segregation in public schools 3. Achieving diverse student body in higher education

When is third-party standing allowed?

1. The third party is unable to assert his own rights; or 2. There is a special relationship between P and the third party; or 3. P's injury adversely affects P's relationship with the third party.

When does taxpayer standing exist?

1. To litigate how much is owed on tax bill 2. To challenge government expenditures as violating the Establishment Clause.

Which amendments allow Congress to regulate purely private conduct?

13th amendment—gives power to adopt legislation rationally related to eliminating racial discrimination

When does a regulatory takings occur?

A regulatory taking occurs when the government substantially restricts the use of private property based on the totality of the circumstances—i.e., the government action's (1) character or nature (i.e. public benefit), (2) economic impact on the property, and (3) interference with the owner's reasonable investment-backed expectations.

How are restrictions on speech in various government forums analyzed?

First consider the type of forum If it's a public forum, either traditional or designated, (government-owned properties that the government is constitutionally obligated to make available for speech, like sidewalks), consider whether it's content based or content neutral: If content-based, get strict scrutiny. If content netural, get intermediate scrutiny. Must also leave open ample alternative channels for communication of the information If it's a nonpublic forum (all other public property), or a limited public foruum (like a gym open to the public for one specific debate): government may regulate speech-related activities in nonpublic forums as long as the regulation is: (i) viewpoint-neutral (doesn't have to be content neutral); and (ii) reasonably related to a legitimate governmental interest

What does the Fourteenth Amendment's equal protection clause "one person, one vote" principle require?

For congressional elections, districts need almost exact equality (eg, < 3% variance) For state elections, districts need only no unjustifiably large inequality (eg, < 17% variance)

What does the property clause allow?

Gives Congress complete power to dispose of and regulate federally owned land and territories. This clause includes the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands—e.g., by prohibiting the erection of structures that completely enclose federally owned land.

What does the takings clause cover?

Government a. taking (possessory or regulatory) of b. property, for c. public use, without d. just compensation. a. Possessory: government takes or occupies property Regulatory: No rule(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with investment-backed expectations; and (3) the character of the governmental action b. Covers private property or property rights—including possessory and nonpossessory interests in land (e.g., easements, liens). c. Basically everything is public use d. Just compensation measured a

What is intermediate scrutiny?

Government must prove that the classification substantially advances an important government interest. Gender cases require an "exceedingly persuasive justification" for the classification.

Who and what does the Privileges and Immunities Clause Protect?

Only natural citizens Article IV: prevents states from discriminating against nonresidents with regards to fundamental rights or commercial activities. Will be invalid unless necessary to achieve an important government purpose, and there are no less restrictive means available. XIV Amendment: prohibits states from denying their own citizens rights of national citizenship, like interstate travel, petitioning government, and access to high seas

When can a state tax the federal government (including agencies and instrumentalities)?

Only with congressional consent.

What is procedural due process?

Prevents deprivation of life, liberty, or property without due process of law. Deprivation: needs more than just negligence Life: Liberty interests: a significant governmental restraint on one's physical freedom, fundamental rights, or freedom of choice or action Property interests: a legitimate claim of entitlement by virtue of statute, employment contract, or custom Due Process: Usually means notice+opportunity to be heard. The amount of process due is determined by balancing (i) the private interest affected; (ii) the risk of erroneous deprivation using current procedures and the probable value of additional/substitute safeguards; and (iii) the government's interest (I.e., balancing test + marginal cost)

What does the non-delegation doctrine prohibit?

Prohibits Congress from delegating its exclusive legislative powers (e.g., making or repealing laws). However, Congress can delegate its incidental powers (e.g., rulemaking authority) to executive-branch agencies if Congress provides an intelligible principle.

What does the contract clause cover?

Prohibits the states from passing any law "impairing the obligation of contracts;" applies only to state legislation—not state-court decisions and not federal legislation—that retroactively impairs contractual rights; does not apply to contracts not yet entered into Private contracts are subject to intermediate scrutiny, public contracts get heightened scrutiny

What is the ministerial exception to the free exercise clause?

Protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.

When does conduct by private parties constitute state action?

Public Function exception: State action occurs when a private person carries on activities traditionally exclusively reserved to the State (e.g., running a city, primary elections, and schools) Entanglement exception: the government affirmatively authorizes, encourages, or facilitates private conduct that violates the Constitution, so private party is basically the state because the two are entwined or involved.

What is the standard of review for civil laws that retroactively impair an ordinary right—e.g., the right to raise the statute of limitations as a defense?

Rational basis

How are equal protection challenges to discriminatory state taxes reviewed?

Rational basis review.

What is Younger abstention?

Requires that a federal court abstain from issuing a declaratory judgment or injunction if doing so would interfere with a pending state criminal, or particular civil, proceeding that (1) involves an important state interest and (2) provides an adequate opportunity to litigate federal issues. Does not apply if state statute is patently unconstitutional

What are the standards of review applied for substantive due process claims? What determines what standard applies?

Standards are strict scrutiny and rational basis. Strict scrutiny applies for fundamental rights (except voting, which gets a sliding scale, and sometimes rational basis), rational basis applies to non-fundamental rights.

What are the standards of review applied for equal protection claims? What determines what standard applies?

Standards are strict scrutiny, intermediate scrutiny, and rational basis. Strict scrutiny applies for fundamental rights or suspect classifications. Intermediate scrutiny applies to classifications based on gender or legitimacy. Rational basis applies to non-suspect classifications, like age, wealth, and weight. If laws are intentionally discriminatory, heightened scrutiny applies. Else, rational basis.

What does the elections clause say?

State legislatures have the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites). But the clause also grants Congress the power to override those state laws by supplanting them with federal law.

How is incitement to violence analyzed for first amendment purposes?

State may forbid speech that advocates the use of force or unlawful action if the speech is 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).

When can states tax interstate commerce?

Only if Congress has not already acted in the particular area and the tax does not discriminate against or unduly burden interstate commerce. Must also meet four-part test (Sales fees Nationally Fixed): o Substantial nexus—between the activity being taxed and the taxing state; o Fair apportionment—such that interstate commerce does not pay total taxes greater than local commerce; o Nondiscrimination—no direct commercial advantage to local businesses over interstate competitors (even if neutral on its face); and o Fair relationship—the tax must be fairly related to the services provided by the taxing state.

What does the 21st amendment do?

The Twenty-first Amendment grants states broad authority to regulate alcohol within their borders. This authority includes the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).

What is the test for establishment clause claims?

Whether it comports with historical practice and the framers' intent

Can a state compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights?

Yes, when the private entity is open to the public and the message is not likely to be attributable to the private entity

What is a bill of attainder?

a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial; applies only to criminal or penal measures

When may a person may only be punished or deprived of public employment based on political association?

if that individual is (1) an active members of a subversive organization, (2) knows of the organization's illegal objectives, and (3) specifically intends to further those objectives.

What is expressive conduct for the purposes of the first amendment?

Conduct intended to convey a message

What happens if the president doesn't sign a bill, but doesn't veto it either?

Congress in session—bill becomes law without the President's signature Congress adjourned—bill does not become law (pocket veto; cannot be overridden)

When are 1983 actions available?

A suit against individual government employees at any level of government, in their individual capacities, for violations of constitutional rights from acting under color of state law. .Color of state law—P must show that the alleged deprivation was committed by a person acting "under color of state law" (functional identical to "state action"

What does the suspension clause say?

All persons held in a territory over which the United States has sovereign control are entitled to habeas corpus (or similar) review of the basis for their detention, unless the privilege of seeking habeas corpus has been suspended.2

What is the taxing power?

Allows congress to pass taxes that bear a reasonable relationship to revenue production or that promote the general welfare

What is the dormant commerce clause?

Also known as "negative implications of the commerce clause." Prohibits states from (1) discriminating against out-of-state commerce or (2) otherwise unduly burdening interstate commerce.

What are the requirements of article III standing?

An injury that is (1) concrete and particularized, (2) actual or imminent, (3) fairly traceable to the defendant's conduct, and (4) redressable by a favorable court decision.

What's barred by the 11th Amendment?

Basically all suits by citizens against any state, including suits against state officials for a violation of state law.

When does a nondiscriminatory state regulation impose an undue burden on interstate commerce?

Balancing test—purpose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives

When can Congress use its spending power to regulate states by placing conditions on the receipt of federal funds?

Conditions: (1) are clear and unambiguous, (2) are reasonably related to the purpose for which the funds will be expended, (3) do not require recipients to engage in unconstitutional activity, and (4) are not unduly coercive.

Generally, what does the establishment clause prohibit?

Can't discriminate or promote; must remain neutral. Can't be coervice either.

What are the exceptions to the 11th Amendment?

Consent Injunctive or declaratory relief Damages paid by state officer; Congressional enforcement of 13th, 14th, and 15th Amendment rights.

How are restrictions on campaign related speech reviewed?

Contributions—statutes limiting campaign contributions are subject to intermediate scrutiny Expenditures—in contrast to campaign contributions, restrictions on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate are subject to strict scrutiny

When can a state tax federal government affiliates (e.g., contractors)?

Whenever, unless: (1) Congress granted the affiliate immunity (2) the tax is discriminatory, or (3) the tax substantially interferes with the affiliate's federal purpose or duties.

How are dormant commerce clause claims analyzed?

Discriminatory: strict scrutiny Nondiscriminatory: undue burden test

What is the rule for prior restraints?

Disfavored. Analyzed like normal speech (strict scrutiny if content based, intermediate scrunity otherwise). In addition, will be allowed only when: (i) there is a particular harm to be avoided; and (ii) certain procedural safeguards are provided to the speaker. Allows restraints like: - obstruction of military recruitment - publication of troop locations, numbers and movements in time of war - obscene publications - incitements to violence - forcible overthrow of government - fighting words likely to promote imminent violence

In what kinds of cases does the Supreme Court have exclusive original jurisdiction? In which cases does it have concurrent original jurisdiction?

Exclusive: Controversies between two or more states Concurrent: Cases involving foreign ambassadors, public ministers, or consuls; cases between the United States and a state and; cases between a state and citizens of another state or noncitizens.

What do the war powers allow congress to do?

Extremely broad, can provide for the national defense by, inter alia, Exclude civilians from sensitive or military areas Implement a military draft and Impose wage, price, and rent controls on the private civilian economy.

When does a state violate the dormant commerce clause by discriminating against out-of-state commerce? When are such laws allowed?

Happens when state protects local economic interests at the expense of out-of-state competitors. Allowed, rarely, when (i) an important local interest being served; and (ii) no other nondiscriminatory means are available to achieve that purpose. Allowed for market participant exception Allowed for laws favoring local governments performing a traditional government function (like waste removal).

How are regulations on student speech in public schools analyzed?

If colleges, treated like a public forum Else, depends on whether the speech is on campus. On campus, can't censor absent substantial disruption or if it arguably promotes drug use. Off campus, can limit to prevent bullying, cheating, or other situations where pedagogical interests outweigh speech interests. Also, if it's school speech (like a student newspaper), okay so long as reasonable

How are restrictions on government employee speech analyzed?

If speech is workplace speech on matter of private concern or speech pursuant to official duties, unprotected If speech as private citizen on matters of public concern, can be restricted if the government interest in efficient government function outweighs the employee's right to free speech. If speech as private citizen on matters of private concern, unclear

How are regulations on commercial speech analyzed?

If the commercial speech is false or misleading, not protected speech so government can do whatever. Otherwise, government can only regulate if: 1. The asserted governmental interest is substantial; 2. The asserted regulation directly advances the asserted interest; and 3. The regulation is narrowly tailored to serve interest (meaning a "reasonable fit" between the government's ends and the means chosen to accomplish those ends).

How are non-content regulations on speech analyzed?

Intermediate scrutiny

What is the dormant commerce clause? And when does a state law violate the dormant commerce clause?

Is the principle that state and local laws are unconstitutional, even when congress has not acted, if they place an undue burden on interstate commerce. State violates the dormant if it enacts regulation that: -Discriminates against out-of-state commerce; -Unduly burdens interstate commerce; or -Regulates wholly out-of-state activity.

What is required for a direct tax to be constitutional?

It must be apportioned proportionately among the states based on each state's population, and must bear a reasonable relationship to revenue production

When does organizational standing exist?

Its members would have standing to sue in their own right; and The interests at stake are germane to the organization's purpose.

What is rational basis review?

Law must be rationally related to a legitimate state interest (minimal scrutiny) 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.

How are free exercise claims analyzed?

Laws that discriminate on the basis of religion are subject to strict scrutiny. A law discriminates on the basis of religion if: a) it's not neutral on its face or b) it is neutral on its face, but in reality targets a religion. If it's a neutral law of general applicability, it's not subject to free exercise claims.

When is a restriction on expressive conduct (symbolic speech) upheld?

Less protected than normal speech. Upheld if: (a) The regulation is within the government's power to enact; (b) It furthers an important governmental interest; (c) The interest is unrelated to the suppression of ideas; and (d) The burden on speech is no greater than necessary.

Who wins as between executive agreements and statutes?

Statutes

How are regulations on the content of speech analyzed?

Strict scrutiny, except for obscenity, child pornography, incitements to violence, true threats, fighting words, defamation, and commercial speech.

How does the appointments clause differ in its treatment of superior and inferior officers?

Superior officers: advice and consent Inferior officers: president can appoint unilaterally.

How is obscenity analyzed for first amendment purposes?

Test is whether the work, taken as a whole, appeals to the prurient interest bycommunity standards; Depicts sexual conduct in a patently offensive way by community standards; and lacks serious literary, artistic, political, or scientific value by national standards. Can do whatever you want in own home

How are fighting words analyzed for first amendment purposes?

Test is whether they are words that by their very nature are likely to incite an immediate breach of the peace

How is media free speech protected?

The First Amendment shields the media from liability for publishing lawfully obtained private facts and other truthful information that involves a matter of public concern. Also protects from liability for publishing truthful information that was unlawfully obtained by a third party if (1) the information involves a matter of public concern and (2) the publisher neither obtained it unlawfully nor knows who did.

What is strict scrutiny review?

The law must be the least restrictive means to achieve compelling government interest o Least restrictive—there cannot be a less restrictive way to achieve the interest and the law should be neither over- nor under-inclusive o Compelling interest—generally understood to mean necessary or crucial

What is required for an indirect tax to be constitutional?

There must be geographical uniformity, meaning that the product or activity at issue must be identically taxed in every state in which it is found. Must also bear a reasonable relationship to revenue production.

When is a statute void for vagueness?

When a criminal law fails to give reasonable notice about what's prohibited, especially when the first amendment is implicated.

When is a regulation overbroad?

When it punishes substantially more speech than is necessary.

When is just compensation otherwise not required for a taking?

When the government destroys private property in response to a public peril.