MBE Con Law - THEMIS
Mootness
A case has become moot if further legal proceedings would have no effect; that is, if there is no longer a controversy. A live controversy must exist at each stage of review, not merely when the complaint is filed, in order for a case to be viable at that stage. Example: The classic example of mootness is the case of DeFunis v. Odegaard, 416 U.S. 312 (1974). The plaintiff was a student who had been denied admission to law school and had then been provisionally admitted while the case was pending. Because the student was scheduled to graduate within a few months at the time the decision was rendered, and there was no action that the law school could take to prevent it, the Court determined that a decision on its part would have no effect on the student's rights. Therefore, the case was dismissed as moot.
legislative veto
It is unconstitutional for Congress to attempt a "legislative veto" of 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.
tax payer injury
Usually, a taxpayer does not have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way. Gov't expenditures do not directly affect your rights.
Regulations that economically favor local liquor businesses over out-of-state liquor businesses
can violate the Commerce Clause. In addition, Congress, under the spending power, can impose conditions on the grant of federal funds that affect state regulation of alcohol.
for defamation, public figure must prove
defendant acted with actual malice, i.e., knowledge of the statement's falsity or reckless disregard for whether it was true or false.
Material that appeals to the prurient interests of minors may be regulated as to minors, even if
it would not be considered obscene to an adult audience. The government may not, however, block adults' access to indecent materials in order to prevent them from reaching children.
right to privacy
marriage, contraception, sexual behavior, abortion
reasonable residency restrictions on interstate travel
may be imposed on the receipt of government benefits (i.e., in-state tuition); however, once a person qualifies as a resident, she must be treated equally.
Property that is worthless to the owner but has value to the government
may be taken without compensation
Forfeiture is an involuntary relinquishment of property that the government alleges is connected to criminal activity. Generally, the government is required to provide the owner with
notice and a hearing prior to seizure of real property. However, the government does not need to provide notice prior to the seizure of personal property.
pardon power
pardon any and all federal offenses. cannot be limited by congress
postal power
to establish post offices and post roads" under Article I, Section 8, Clause 7. Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment).
least restrictive means
there cannot be a way to achieve the same interest that is less restrictive of the right at issue. A law will not fail simply because there are other methods of achieving the goal that are equally or more restrictive.
Under the Religious Freedom Restoration Act, which is applicable only to the federal government, not to the states, even neutral laws of general applicability are subject to strict scrutiny if
they substantially burden the free exercise of religion.
test for governmental infringement upon nonfundamental rights
those related to social or economic interests such as business, taxation, lifestyle, or zoning—requires only a rational relationship between the law and a legitimate governmental interest.
Narrowly drawn zoning ordinances may be used to restrict the location of adult theaters if the purpose of the regulation is
to reduce the impact on the neighborhood of such establishments, but they may not be used to ban such establishments entirely. It does not matter that such establishments may be found in adjoining jurisdictions.
Ripeness
"Ripeness" refers to the readiness of a case for litigation. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. For a case to be "ripe" for litigation, the plaintiff must have experienced a real injury (or imminent threat thereof). Hence, if an ambiguous law has a long history of non-enforcement, a case challenging that law may lack ripeness.
impeachment
"The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The House of Representatives determines what constitutes "high crimes and misdemeanors" and may impeach (i.e., bring charges) by a majority vote. The Senate tries the impeached official, and a two-thirds vote is necessary for conviction.
DIRECT TAX (taxing and spending)
"[r]epresentatives and direct taxes shall be apportioned among the several states," and ARTICLE I, SECTION 9 provides that "no...direct tax shall be laid, unless in proportion to the Census...." A direct tax (one imposed directly on property or persons, such as an ad valorem property tax) would therefore have to be apportioned evenly among the states. The difficulty of ensuring this outcome explains Congress's reluctance to enact such taxes—or perhaps the Supreme Court's reluctance to find that federal taxes are "direct." The Sixteenth Amendment gave Congress the power to lay and collect income tax without apportionment among the states.
In enforcing 14th amendment rights, there must be a _______ between the injury to be prevented or remedied and the means adopted to achieve that end.
"congruence and proportionality" City of Boerne v. Flores, 521 U.S. 507 (1997) (Religious Freedom Restoration Act held invalid for failure to show widespread religious discrimination and for disproportion to any purported remedial goal).
In order to prevent a "chilling effect" on protected speech (i.e., frightening people into not speaking for fear of prosecution), overbroad statutes may be challenged as
"facially invalid" even by those who are validly regulated on behalf of those who are not.
Congress may delegate the appointment of
"inferior" officials to the President alone (i.e., without Senate approval), the heads of executive departments, or the courts. "Inferior" officials are those supervised by Senate-confirmed appointees.
A law that burdens substantially more speech than is necessary to protect a compelling governmental interest
"overbroad" and therefore void. A statute's overbreadth must be substantial both in an absolute sense and relative to the statute's plainly legitimate reach. The mere fact that some impermissible applications of a statute can be conceived of is not sufficient to render a statute overbroad.
A state tax on foreign commerce must, in addition to meeting the same requirements as a tax on interstate commerce, not
(i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues.
fundamental rights
(i) the right to vote; (ii) the right to travel; and (iii) the right to privacy (including sexual relations, abortion, child rearing, and the right of related persons to live together). Under strict scrutiny, a law interfering with a fundamental right will generally be upheld only if it is necessary to achieve a compelling governmental interest.
The government may regulate speech-related activities in nonpublic forums as long as the regulation is
(i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest. Note that a governmental fundraising campaign is a nonpublic forum for the expression of speech. The decision to exclude some charities (but not others) cannot be made because the government disagrees with a particular organization's political views; such a decision must be ideologically neutral.
The standard of review in substantive due process cases is generally twofold:
1) A governmental action that infringes upon a fundamental right is subject to STRICT SCRUTINY 2) If the interest infringed upon is not fundamental, then there need be only a RATIONAL BASIS for the regulation
Which amendment authorizes congress to regulate private conduct?
13th -Congress has broad power to legislate against public and private racial discrimination.
The Equal Protection Clause of the 14th Amendment is applied directly to the states and indirectly to the federal government through
5th amendment due process clause
pullman doctrine- abstention
A court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts.
Younger abstention
A court will generally not enjoin a pending state criminal case or a state enforcement proceeding in which an especially strong state interest is involved. Younger v. Harris, 401 U.S. 37 (1971). The exception to this abstention is seen in cases of proven harassment or prosecutions taken in bad faith.
voluntary cessation exception to mootness
A court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once litigation has commenced. The court must be assured that "there is no reasonable expectation that the wrong will be repeated.
political questions
A federal court will not rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government. A political question not subject to judicial review arises when: i) The Constitution has assigned decision making on this subject to a different branch of the government; or ii) The matter is inherently not one that the judiciary can decide. I.e. impeachment, gerrymandering
executive immunity: federal officials
A federal official, in performing a discretionary (as opposed to ministerial) act, is entitled to qualified immunity from liability for civil damages when the official's conduct does not violate clearly established statutory and constitutional rights of which a reasonable person would have known. This is an objective standard; a plaintiff's bare allegations of malice are insufficient to overcome this immunity.
length of residency requirements
A governmental unit may require, subject to strict scrutiny, that a person be a resident for a short period prior to an election in order to vote in that election. one year is too long for everything except in state tuition and divorce
residency
A governmental unit may restrict, subject to a rational basis, the right to participate in its political process to those who reside within its borders; nonresidents generally may be prohibited from voting.
judicial immunity
A judge is absolutely immune from civil liability for damages resulting from her judicial acts, including grave procedural errors and acts done maliciously or in excess of authority unless there is a clear absence of all jurisdiction. The judge is not immune, however, to lawsuits regarding nonjudicial activities, such as hiring and firing court employees.
Discriminatory application
A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated. Example: A city's ordinance concerning the police academy say nothing about gender, but in practice only men are considered for admission.
Discriminatory motive
A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause. Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977). Example: A city's paramedic training school is theoretically open to both men and women, but the entrance test includes a height requirement that disproportionately excludes women.
Facial discrimination
A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face. Example: An ordinance states that only males will be considered for a city's training academy for firefighters.
Third party standing
A litigant generally has no standing to bring a lawsuit based on legal claims of a third party. There are a few notable exceptions to this rule, however: i) If the third parties would experience difficulty or are unable to assert their own rights, such as a Caucasian defendant raising equal protection and due process objections to discrimination against African-American people in the selection of grand juries, ii) If there is a special relationship between the plaintiff and the third parties, such as an employer asserting the rights of its employees, a doctor asserting the rights of his patients in challenging an abortion ruling, or a private school asserting its students' rights to attend despite a statute requiring attendance at public schools, iii) If a plaintiff suffers an injury, and the injury adversely affects the plaintiff's relationship with a third party, the plaintiff may assert the third-party's rights.
Standing to assert a Tenth Amendment violation
A party has standing to challenge the constitutionality of a federal statute on the grounds that it exceeds Congress's enumerated powers and intrudes upon the powers reserved to the states by the Tenth Amendment.
STATE ACTION is a necessary prerequisite to triggering constitutional protections.
A private person's conduct must constitute state action in order for these protections to apply. For example, state action may exist in cases of private parties carrying out traditional governmental functions or significant state involvement in the activities. Or activities that are traditionally performed EXCLUSIVELY by the state. OR the actions of a private party and the government are so intertwined that a mutual benefit results, such as if the parties are involved in a joint venture.
public figure
A public figure is someone who is known to the general public and includes any person who has voluntarily injected herself into the public eye.
executive immunity: presidential advisor
A senior presidential advisor (e.g., cabinet member) is not automatically entitled to enjoy derivatively the protection of absolute executive immunity. Although the Supreme Court has stated that such an advisor may be entitled to such protection when performing special functions that are vital to national security or foreign policy, the Court has also held that an Attorney General did not qualify for absolute immunity with respect to the authorization of a warrantless wiretap for national security purposes. The burden for establishing such immunity rests with the advisor.
dormant commerce clause: Market-participant exception
A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.
dormant commerce clause: subsidy exception
A state may favor its own citizens when providing for subsidy. For example, a state may offer in-state residents a lower tuition rate to attend a state college or university than out-of-state residents.
discrimination against out of state commerce
A state or local regulation discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors.
Taxing
A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production, or if Congress has the power to regulate the activity being taxed, subject to certain limitations. Example: The Affordable Health Act's individual mandate, requiring individuals to buy health insurance or pay a penalty, merely imposed a tax on those who failed to buy insurance and therefore could be sustained under the taxing power. Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 132 S. Ct. 2566 (2012).
Tax payer standing exception
A taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause. There is an exception for a taxpayer suit challenging a specific congressional appropriation made under the taxing and spending powers for violation of the Establishment Clause. This exception does not apply to the transfer of property to a religious organization by Congress under the Property Power nor to expenditures made by the President to religious organizations from monies appropriated by Congress to the President's general discretionary fund
When a party obtains an unfavorable judgment from a state's highest court, that party is unable to obtain review of that judgment by the U. S. Supreme Court if the judgment rests on
Adequate and independent state grounds
right to international travel
Although there is a right to travel internationally, it is not a fundamental right invoking strict scrutiny. Hence, the U.S. government may limit travel to Cuba, for example, as long as it has a rational basis for doing so.
ad valorem property tax
An ad valorem tax is based on the value of real or personal property and is often assessed at a particular time (e.g., tax day). Such taxes, which may be imposed on the full value of the property, are generally valid, but a state may not levy ad valorem taxes on goods in the course of transit (from the time the goods are delivered to an interstate carrier or begin their interstate journey until they reach their destination). However, once the goods are stopped for a business purpose (i.e., obtain a "taxable situs"), they may be taxed.
Assignee Standing
An assignee of a claim has standing to enforce the rights of an assignor, even when the assignee is contractually obligated to return any litigation proceeds to the assignor (e.g., an assignee for collection), provided the assignment was made for ordinary business purposes and in good faith.
executive privilege: civil proceedings
An executive branch decision to withhold production of information in civil proceedings will be given greater deference than in a criminal trial because the need for information is "weightier" in the latter case. In a civil case, the court may be required to consider the issue of separation of powers without first requiring the executive branch to assert executive privilege.
Organizational standing
An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization has not suffered an injury itself) if: i) Its members would have standing to sue in their own right; and ii) The interests at stake are germane to the organization's purpose. When damages are sought, generally neither the claim asserted nor the relief requested can require the participation of individual members in the lawsuit. But note that the damages limitation is not constitutionally mandated and can be waived by Congress.
pre-viability
An undue burden exists when the purpose or effect of a state law places substantial obstacles in the way of a woman's right to seek an abortion before the fetus attains viability.
CONTRACTS CLAUSE, Article I, Section 10
Article I states that no STATE legislation may retroactively impair the obligation of contracts. The article does not apply to federal action or to court decisions.
War and Defense Powers
Article I, Section 8 gives Congress the power to declare war, raise and support armies, provide and maintain a navy, make rules for governing and regulating the land and naval forces, and provide for the organizing of a militia. includes providing for national defense, military courts and tribunals but CANNOT provide for military trial of US citizens
dormant commerce clause: congressionally permitted discrimination exception
Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. It must be unmistakably clear that Congress intended to permit the otherwise impermissible state regulation; Congress must expressly allow or "affirmatively contemplate" such state legislation. The fact that the state policy appears to be consistent with federal policy or that the state policy furthers the goals that Congress had in mind is insufficient.
delegation of legislative powers
Because Congress is vested by Article I with "all legislative powers," it may not delegate that power to any other branch of government. This principle is known as the "nondelegation doctrine." However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Example: The IRS has been given the power to collect taxes that are assessed under the Internal Revenue Code. Although Congress has determined the amount to be taxed, it has delegated to the IRS the power to determine how such taxes are to be collected.
Citizenship standing
Citizens do not have standing to assert a claim to enforce a constitutional provision merely because they are citizens, although a citizen may bring an action against the government to compel adherence to a specific federal statute. Even in such a case, the plaintiff must have directly suffered an injury in fact.
executive privilege: state secrets
Claims of privilege based on national security are generally accorded enhanced deference.
Injury must be
Concrete and particularized
hierarchy of federal statutes, treaties, executive agreements, state laws
Conflicting federal statutes and treaties take precedence over executive agreements, but executive agreements take precedence over conflicting state laws.
executive privilege: historical preservation
Congress can require the preservation of presidential papers and tape recordings.
congress power over naturalization
Congress has exclusive authority over naturalization. Article I, Section 8, Clause 4 allows Congress to "establish a uniform rule of naturalization." Example: Children born abroad whose parents are U.S. citizens are not automatically entitled to U.S. citizenship. Congress can grant citizenship conditioned on the child's return to the U.S. within a specified timeframe or for a specified duration. Rogers v. Bellei, 401 U.S. 815 (1971). However, the right of national citizenship in the Fourteenth Amendment prevents Congress from taking away the citizenship of any citizen without her consent, unless that citizenship was obtained by fraud or in bad faith. Afroyim v. Rusk, 387 U.S. 253 (1967) (federal statute that stripped citizenship for voting in a foreign election struck down); Costello v. United States, 365 U.S. 265 (1961) (citizen's willful failure to accurately state his occupation on a naturalization application resulted in loss of citizenship).
congress power over aliens
Congress has plenary power over aliens. Fiallo v. Bell, 430 U.S. 787 (1977). Aliens have no right to enter the United States and may be refused entry for reasons such as their political beliefs. Kleindienst v. Mandel, 408 U.S. 753 (1972). However, this power is subject to the constraints of the Fifth Amendment Due Process Clause for an alien within the United States. Zadvydas v. Davis, 533 U.S. 678 (2001). An alien may generally be removed from the United States, but only after notice and a removal hearing. 8 U.S.C. §§ 1229, 1229a.
congress power to regulate interstate commerce
Congress has power to regulate (i) the channels (highways, waterways, airways, etc.) and (ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right.
13th amendment- ban on slavery
Congress has the power to adopt legislation rationally related to eliminating racial discrimination, as it is among the "badges or incidents" of slavery. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). This power has been broadly interpreted to allow Congress to regulate both private and government action, including racial discrimination by private housing sellers, private schools, and private employers. (This is the only amendment that authorizes Congress to regulate purely private conduct.)
Substantial Economic Effect
Congress has the power to regulate any activity, intra- or interstate, that in and of itself or in combination with other activities has a "substantial economic effect upon" or "effect on movement in" interstate commerce.
The Eleventh Amendment prohibition may be overridden by
Congress in enforcing rights created by the Fourteenth Amendment.
necessary and proper clause
Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. McCulloch v. Maryland, 17 U.S. 316 (1819). The Necessary and Proper Clause is not an independent source of power, but it permits Congress's otherwise designated authority to be exercised fully. EXAM NOTE: Because the Necessary and Proper Clause is not an independent source of power, it is not a correct answer choice by itself unless it carries into effect other enumerated powers.
power of congress for pending new legislation
Congress may amend or repeal existing law and direct that the change be applied in all related pending actions, i.e., those in which a final judgment has not been entered.
CONGRESS - Separation of Powers (&Judicial Limitations)
Congress may not reinstate the right to bring a legal action after the judgment in the action has become final. Requiring a federal court to do so violates the separation of powers doctrine. Once a judicial decision becomes the final word of the federal judiciary with regard to a particular case or controversy, Congress may not declare by retroactive legislation that the law applicable to that particular case was different from what the courts said it was. ID#6596
non-economic activity, interstate commerce
Congress's power under the Commerce Clause to regulate intrastate activity that is not obviously economic (so-called "non-economic" activity) is limited to some degree by principles of federalism, at least when the regulation involves an area of traditional state concern. The non-economic activity must have a substantial economic effect on interstate commerce. Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 132 S. Ct. 2566 (2012) (requiring individuals not engaged in commercial activities to buy unwanted health insurance could not be sustained as a regulation of interstate commerce); United States v. Morrison, 529 U.S. 598 (2000) (federal civil remedy for victims of gender-motivated violence held invalid); United States v. Lopez, 514 U.S. 549 (1995) (federal statute regulating possession of a firearm within 1,000 feet of a public school struck down).
Private affirmative action Recall that the Equal Protection Clause applies only to governmental action, so private employers are not restricted by it. Discrimination by private employers is nonetheless regulated by federal statute pursuant to
Congress's power under the enabling clauses of the Thirteenth and Fourteenth Amendments and the Commerce Clause.
Redressability
Court can do something about your injury. If injury is past, redress is damages. if injury is future, usually injunction. To get an injunction you have to show that the injury is likely to happen again.
Causation
D's acts have caused or will caused P's injury
due process: parental rights
Different burdens of proof are applied to termination of parental rights and paternity actions. Because termination of parental rights deprives parents of a fundamental right, the state must use clear and convincing evidence to support allegations of neglect.
CONGRESS - investigatory power
Does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate. While a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, the witness is entitled to certain procedural due process rights, including the presence of counsel. ID#3225
Majority-minority districts
Election districts for public office may NOT be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor historically disenfranchised groups. The state can use traditional factors—such as compactness, contiguity, or honoring political subdivisions—as the bases for the district, and it may only consider race if it does not predominate over other considerations.
examples of political questions
Example: Details of Congress's impeachment procedures (constitutionally assigned to a branch other than the judiciary) and the President's conduct of foreign affairs (not within judicial competence) are examples of political questions. Compare: The political question doctrine does not bar courts from adjudicating the constitutionality of a federal statute directing that an American child born in Jerusalem is entitled to have Israel listed as her place of birth in her U.S. passport. The Court held that the Constitution did not commit the issue to another branch of government and resolving the case would involve examining "textual, structural, and historical evidence" concerning statutory and constitutional provisions, something within judicial competence. Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).
example of aggregate interstate commerce
Example: The Supreme Court upheld congressional restriction of wheat production, even when applied to a farmer growing only 23 acres of wheat, primarily for personal use. The rationale behind the decision was that if every small farmer were allowed to grow an unrestricted amount of wheat, the combined effect could have an impact on supply and demand in the interstate market.
if the injunction is content-based
it must be necessary for the government to achieve a compelling governmental interest.
advisory opinions
Federal courts may not render advisory opinions on the basis of an abstract or a hypothetical dispute. An actual case or controversy must exist. EXAM NOTE: Fact patterns involving a request for declaratory judgment are likely testing advisory opinion prohibition.
express preemption
Federal law expressly preempts state law in cases in which the Constitution makes the federal power exclusive (such as the powers to coin money or declare war) or when Congress has enacted legislation that explicitly prohibits state regulation in the same area (e.g., the Federal Cigarette Labeling and Advertising Act forbids state laws that regulate either cigarette labels or the "advertising or promotion" of labeled cigarettes "based on smoking and health,"
congress generally may regulate the states
For example, a federal minimum wage and overtime statute enacted under the commerce power can be applied to state employees. Similarly, Congress could prohibit the disclosure by state officials of personal information obtained from driver's license applications because such information constitutes an article of commerce that is being sold in interstate commerce. If Congress determines that a state is violating a person's civil liberties, it can place limits on that state's activities by using the power of the Fourteenth and Fifteenth
Parental standing
Generally, a parent has standing to bring an action on behalf of the parent's minor child. However, after a divorce, the right to bring such an action may be limited to only one of the child's parents. Moreover, when the right to bring such an action is based on family-law rights that are in dispute, the federal courts should not entertain an action if prosecution of the lawsuit may have an adverse effect on the child. (noncustodial parent with joint legal custody could not challenge school policy on behalf of his daughter when the custodial parent opposed the action).
export tax
Goods exported to foreign countries may not be taxed for that reason by Congress or the states.
appropriation
If Congress explicitly mandates an expenditure of funds, the President has no power to impound those funds (i.e., refuse to spend them or delay the spending). The President is permitted to exercise spending discretion if the authorizing legislation so provides. EXAM NOTE: Separation of powers questions often center on the President trying to impound funds appropriated by Congress. Remember that if Congress fails to mandate that the funds are to be spent, then impoundment is not a separation of powers violation.
dormant commerce clause
If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: i) Discriminate against out-of-state commerce; ii) Unduly burden interstate commerce; or iii) Regulate extraterritorial (wholly out-of-state) activity.
dormant commerce clause: Necessary to important state interest
If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that: i) An important local interest is being served; and ii) No other nondiscriminatory means are available to achieve that purpose.
class action exception to mootness
If the named plaintiff's claim in a certified class action is resolved and becomes moot, that fact does not render the entire class action moot.
Standing Requires:
Injury, causation, redressability
Right to refuse medical treatment
It is an established liberty interest that a person may not be forced to undergo unwanted medical procedures, including lifesaving measures, but the Court has not ruled on whether this right is "fundamental." There is no fundamental right to commit suicide; therefore, the state may ban the assistance of suicide.
supremacy clause
It is possible (and common) for the federal and state governments to legislate in the same area. When this happens, the Supremacy Clause provides that federal law supersedes conflicting state law
burden of proof: rational basis
Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. In court, 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. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.
Suspect Classifications
Laws that categorize based on race, ethnicity, national origin, or (in some cases) alienage are considered suspect and therefore require closer judicial examination. Such laws are subject to strict scrutiny and are invalid unless they are necessary to achieve a compelling governmental interest.
A cognizable property interest involves
More than an abstract need or desire; there must be a "legitimate claim of entitlement" by virtue of statute, employment contract, or custom. EXAMPLE: If enforcement of the restraining order is subject to the discretion of the police officers, then the woman cannot assert an absolute entitlement to having the order enforced. Unless the woman was entitled to have the restraining order enforced, she did not have a protected interest that triggered her procedural due process rights. ID#6600
Obscenity and Child Pornography
Neither obscene speech nor child pornography is protected by the First Amendment Free Speech Clause. The sale, distribution, and exhibition of obscene material may be prohibited. However, the right to privacy precludes criminalization of possession of obscenity in one's own home.
Can congress pass legislation to enforce and expand the equal protection and due process rights guaranteed by the 14th amendment?
No. Under the separation of powers doctrine, the job of defining such rights falls to the Supreme Court.
Right to avoid disclosure of personal medical information
Numerous courts include personal medical information within a "zone of privacy." Though the right to protect personal, confidential information is not absolute, courts weigh it against competing interests, employing a balancing test that generally includes consideration of the government's need for access to the information and the adequacy of safeguards, as well as the type and substance of the requested records and the potential for harm in non-consensual disclosure.
post-viability
Once the fetus reaches viability, the state may regulate, and even prohibit, abortion, as long as there is an exception to preserve the health or life of the mother. In other words, at the point of viability, the state's interest in protecting fetal life may supersede a woman's right to choose; because the state's interest in protecting fetal life cannot supersede its interest in protecting a woman's health, however, there must be an exception for the woman's health.
president treaty power
President has the exclusive power to negotiate treaties, although a treaty may only be ratified with the concurrence of two-thirds of the Senate.
appointment power
President, with the advice and consent of the Senate, to appoint all "officers of the United States," including ambassadors and Justices of the Supreme Court.
executive privilege: criminal trial
Presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information. A judge may examine the communications in camera to determine whether the communications fall within the privilege.
Affirmative action
Programs that favor racial or ethnic minorities are also subject to strict scrutiny.
Diversity in public universities and colleges
Race may be used as a "plus factor" (i.e., one of a range of factors to consider) in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body. The use of racial quotas or of race as a determinative criterion, however, violates equal protection and is unconstitutional.
Racial gerrymandering
Race may not be the predominant factor in determining the boundary lines of legislative districts
Governmental regulation of speech on a person's own private property will
Rarely be upheld, particularly content-based regulations. While the government has some limited powers to regulate speech on private property, outright bans on certain types of speech, such as signs in a person's yard or window, are impermissible.
fundamental right to family relations
Related persons, including extended family members, have a FUNDAMENTAL RIGHT to live together in a single household. Therefore, the strict scrutiny test applies to the statute. Under this test, the law must be the least restrictive means to achieve a compelling governmental interest.
prosecutor immunity
Similar to judicial immunity- for civil liability for damages resulting from judicial acts including grave procedural errors and acts done maliciously or in excess of authority unless there is a clear absence of all jurisdiction. Court officers who perform ministerial duties, such as court reporters, are entitled only to qualified, not absolute, immunity.
dormant commerce clause: traditional gov't function exception
State and local regulations may favor state and local government entities, though not local private entities, when those entities are performing a traditional governmental function, such as waste disposal. For example, an ordinance may require all trash haulers to deliver to a local public waste-treatment facility, but not to a local private facility.
speech or debate clause: state legislators
State legislators: The Speech or Debate Clause does not apply to state legislators, but under the principles of federalism, state legislators are immune from liability for actions within the sphere of legitimate legislative activity
federal taxation of states
States are not immune from federal taxation unless the tax would discourage essential governmental functions. This is particularly true when the taxed state activity is a business similar to federally taxed businesses run by private individuals, such as railroads or liquor stores.
"Extraterritoriality" interstate commerce
States may not regulate conduct that occurs wholly beyond their borders. Thus, Connecticut could not require that beer sold in Connecticut not be priced higher than beer sold in any of the four neighboring states, because the Connecticut regime had the practical effect of regulating beer prices in those states. There may be an exception for the regulation of the internal affairs of corporations.
Removal power
The Constitution says nothing about the President's power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval).
Gender: Affirmative action (benign discrimination)
The Court has upheld affirmative action regulations granting beneficial treatment to women over men (such as tax exemptions, increased social security benefits, and increased protection from mandatory armed forces discharge) because providing a remedy for past gender-based discrimination is an important governmental interest.
15th amendment- voting
The Fifteenth Amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted.
14th amendment- equal protection and due process
The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones.
Full faith and credit clause: Laws (Public Acts)
The Full Faith and Credit Clause is "less demanding" with respect to choice of law (i.e., which state's law should apply in a situation when either might). Id.
executive agreements
The President has the power to enter into executive agreements with foreign nations (e.g., reciprocal trade agreements) that do not require the approval of two-thirds of the Senate.
executive immunity: official duties
The President may not be sued for civil damages with regard to any acts performed as part of the President's official responsibilities. The President has no immunity, however, from a civil action based on conduct alleged to have occurred before the President took office or completely unrelated to carrying out his job. Moreover, the President may be subject to such a suit even while in office.
line item veto
The President may not exercise a "line item" veto, refusing part of a bill and approving the rest, because it violates the Presentment Clause.
commander in chief
The President may take military action without a declaration of war in the case of actual hostilities against the United States.
complete auto test
The Supreme Court applies a four-part test to determine whether a state tax on interstate commerce comports with the Commerce Clause. A state tax imposed on interstate commerce must satisfy the Complete Auto test. (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state. A state tax on foreign commerce must, in addition to meeting the same requirements as a tax on interstate commerce, not- (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues.
burden of proof: strict scrutiny
The burden is on the government to prove that the law is necessary to achieve a compelling governmental interest.
declaratory judgments
The courts are not prohibited from issuing declaratory judgments, however, that determine the legal effect of proposed conduct without awarding damages or injunctive relief. The challenged action must pose a real and immediate danger to a party's interests for there to be an actual dispute (as opposed to a hypothetical one).
fundamental parental rights
The fundamental parental right to make decisions regarding the care, custody, and control of one's children includes the right to privately educate one's child outside the public school system and to limit visitation of grandparents
Under intermediate scrutiny, the burden is on
The government As with strict scrutiny (and unlike rational basis review), the government must defend the interest(s) it stated when the law was enacted, not just some conceivable legitimate interest.
Current division in courts regarding sexual orientation.
The government, however, cannot impose a burden or deny a benefit on a group of persons solely based on animosity toward the class that it affects. SAMPLE: The Supreme Court has struck down bans on same-sex marriage as violations of a fundamental right on both Due Process and Equal Protection grounds, but it has not resolved the issue of whether discrimination based on sexual orientation is subject to heightened scrutiny. Regardless of whether heightened scrutiny applies here, the government cannot impose a burden on or deny a benefit to a group of persons solely based on animosity toward the class that it affects. In this case, a court would likely strike down the law because it does not satisfy the rational basis test. ID#4361
For a governmental affirmative action program to survive, the relevant governmental entity must show more than a history of societal discrimination.
The government—whether federal, state, or local—must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects.
level of scrutiny on right to vote
The level of scrutiny to which a governmental restriction of this right is subject depends on the degree to which the restriction affects the exercise of this right; the more significant the impact, the greater the degree of scrutiny.
when is rational basis applied
The rational basis standard is used in all cases that one of the higher standards (intermediate or strict scrutiny) does not apply. applies to laws drawing distinctions based on age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons. In practice, most legislation related to lifestyle, taxation, zoning, and punitive damages is reviewed under this standard.
viewpoint neutral
The regulation need not be content-neutral, but it must be 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. For example, while a restriction on all public speeches related to abortion on military bases would likely be upheld, a restriction only on pro-life speeches would not.
uniform (taxing and spending)
The requirement that all federal taxes must be uniform throughout the United States has been interpreted to mean geographical uniformity only; the product or activity at issue must be identically taxed in every state in which it is found. Differences in state law do not destroy this uniformity. Fernandez v. Wiener, 326 U.S. 340 (1945) (federal estate tax on "community property" valid despite variation in state laws regarding marital property).
retroactive legislation
The retroactive application of a statute does not in and of itself violate substantive due process. Consequently, a law that is applied retroactively must merely meet the rational basis test. Similar treatment applies to a statutory change that is remedial in nature (i.e., affects a remedy but does not create or abolish a right). Note, however, that the extension of a criminal statute of limitations may violate the prohibition on an ex post facto law
legitimate property interests
The rights to public education, to government-issued licenses, and to continued welfare and disability benefits. There is a legitimate property interest in continued public employment only if there is an employment contract or a clear understanding that the employee may be fired only for cause. A public employee who may be discharged only for cause has a property interest in her job, and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal pre-termination hearing, however, is not required when there is a significant reason for immediately removing a "for-cause" employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process.
Spending
The spending power has been interpreted very broadly. Congress has the power to spend for the "general welfare"—i.e., any public purpose—not just to pursue its other enumerated powers. U.S. v. Butler, 297 U.S. 1 (1936). For example, Congress can provide for the public funding of presidential nominating conventions as well as election campaigns. Buckley v. Valeo, 424 U.S. 1 (1976). Congress cannot, however, impose unconstitutional conditions that turn pressure into compulsion, such as requiring distribution of the Ten Commandments to patients as a condition of Medicaid funding.
Impairment by the state of a public contract (one to which the state or local government is a party) is subject to essentially the same "reasonable and necessary" test as private contracts, but
The state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. Note that there is no substantial impairment if the state reserved—by statute, law, or in the contract itself—the right to revoke, alter, or amend.
Strict in theory, fatal in fact
The strict scrutiny standard is very difficult to meet. The great majority of laws reviewed under strict scrutiny are struck down.
complete auto test: nondiscrimination
The tax may not provide a direct commercial advantage to local businesses over their interstate competitors (unless Congress specifically authorizes such a tax). A tax that is neutral on its face still may be unconstitutional if its effect is to favor local commerce. In addition, the denial of tax exemption to a state entity unless the entity operates primarily for the benefit of state residents may be unconstitutional.
complete auto test: fair appointment
The tax must be fairly apportioned according to a rational formula (e.g., taxing only the state's portion of the company's business), such that interstate commerce does not pay total taxes greater than local commerce by virtue of having to pay tax in more than one state. The burden is on the taxpaying business to prove unfair apportionment.
complete auto test: fair relationship to services provided
The tax must be fairly related to the services provided by the taxing state.
congress election power
The times, places and manner of holding elections for Senators and Representatives shall be prescribed by each state legislature, but Congress may...make or alter such regulations." The Elections Clause explicitly empowers Congress to override state laws concerning federal elections.
Obscene material
There is a fundamental right to possess obscene material in the privacy of one's home,with the exception of child pornography The state, however, may severely restrict the sale, purchase, receipt, transport, and distribution of obscene material.
right to interstate travel
There is a fundamental right to travel from state to state. This includes the right to enter one state and leave another, to be treated as a welcome visitor, and, for those who wish to become permanent residents, the right to be treated equally to native-born citizens with respect to state benefits.
gov't funding for abortion
There is no constitutional right to have the government provide indigent women with funding for an abortion or for medical care related to an abortion, even if the government does provide indigent funding for medical care at childbirth. Furthermore, a state may prohibit all use of public facilities and public employees in performing abortions.
Intimate sexual behavior
There is no legitimate state interest in making it a crime for fully consenting adults to engage in private sexual conduct—including homosexual conduct—that is not commercial in nature.
complete auto test: substantial nexus
There must be a substantial nexus between the activity being taxed and the taxing state. A substantial nexus requires significant (i.e., more than minimum) contacts with, or substantial activity within, the taxing state.
limitation of speech or debate clause
This protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts. This protection also does not apply to speeches made outside Congress, or the "republication (i.e., repeating) of a defamatory statement originally made in Congress.
T/F: When a state court decision is unclear as to whether it rests on federal or state grounds, the U.S. Supreme Court may review the federal issue.
True
veto
Upon presentment, the President has 10 days to act on proposed legislation. If the President signs the bill, it becomes law. The President may also veto the bill by sending it back, with objections, to the house in which it originated.
vote dilution
When a state draws election districts for the purpose of scattering a racial or ethnic minority among several districts in order to prevent the minority from exercising its voting strength- violation of equal protection
Notice & Hearing for Benefits
While a state must give notice and hold a hearing prior to terminating welfare benefits, in cases of terminating disability benefits, the state must give prior notice, but only a post-termination evidentiary hearing. Since the court determined that the unemployment benefits should be treated in the same manner as disability benefits, the opportunity for a post-termination hearing that was provided to the employee satisfied the employee's procedural due process rights. ID#6298
interstate commerce aggregate
With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, such as growing crops for personal consumption, as long as there is a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. Gonzales v. Raich, 545 U.S. 1 (2005) (prohibition on personal cultivation and use of medical marijuana upheld due to effect on overall interstate trade). The practical effect of this rule is that with regard to economic activity, a substantial economic effect is presumed.
full faith and credit
[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."
A display of the Ten Commandments on public property is an impermissible violation of the Establishment Clause if the display has
a "predominantly religious purpose." If the display also communicates a secular moral message, or its context conveys a historical and social meaning, it may be upheld.
a state cannot require a paternity action brought on behalf of an illegitimate child to be commenced within
a limited time after birth in order to secure child support, while imposing a similar time limit on a legitimate child seeking child support from a parent.
A variation of less than 10% in state and local districts is rebuttably presumed to be
a minor deviation that does not constitute a prima facie case for discrimination. When the maximum variation is 10% or greater, the state must show that the deviation from equality between the districts is reasonable and designed to promote a legitimate state interest.
When a mother or child is initiating a paternity suit, due process requires proof by only
a preponderance of evidence. In a paternity action initiated by the state, the state must pay for the necessary blood work used in determining paternity.
A growing exception exists, for state laws that restrict or prohibit an alien's participation in government functions. Such laws need only have
a rational relationship to a legitimate state interest. Laws prohibiting aliens from voting, serving on a jury, or being hired as police officers, probation officers, or public-school teachers have been upheld as preventing aliens from having a direct effect on the functioning of the government.
If Congress does not intend to occupy the field completely
a state is free to enact similar legislation
If there has not been federal preemption in a given area,
a state is free to set more stringent standards than those imposed by the federal government. In addition, a state may recognize individual rights that exceed those granted by the federal constitution or federal statutes.
The government may fund private messages. However, it must generally do so on
a viewpoint neutral basis exception to this is when the government decides to fund artists; the decision of which artist to fund is necessarily based on the content of the artist's work.
Congress may not itself appoint members of a body with
administrative or enforcement powers; such persons are "officers of the United States" and must be appointed by the President.
nonpublic forum
all public property that is not a traditional or designated public forum. Examples include government offices, schools, jails, and military bases. Sidewalks on postal service property and airport terminals are also considered nonpublic forums.
state university that allows groups to meet on campus must
also allow student religious groups to have the same access. technically freedom of speech
even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution
an "at-will" governmental employee cannot be fired for having engaged in speech protected by the First Amendment. Similarly, discharge of an "at-will" governmental employee because of the employee's political views or affiliations would violate the employee's right to freedom of expression and association, unless it can be demonstrated that effective performance of the employee's job requires certain political views or affiliations.
interstate compact
an agreement, similar to a treaty or a contract, between two or more states. allows states to enter into such agreements only with the consent of Congress. However, the only agreements that qualify as "compacts" requiring the consent of Congress are those that either affect a power delegated to the federal government or alter the political balance within the federal system.
Prudential standing principle
an injury that is shared by all or a large class of citizens (i.e., a generalized grievance) is not sufficiently individualized to give the plaintiff standing.
due process addresses injury that results from
an intentional government act. mere negligent conduct by a government employee does not trigger a due process right.
Because Congress has plenary power over aliens under Article I, a federal alienage classification is likely valid unless it is
arbitrary and unreasonable. Example: Medicare regulations may require a five-year residency period for eligibility despite thereby excluding many lawful resident aliens.
tax deductions given to reimburse tuition expenses only for parents of students in religious schools
are invalid. If such a deduction is available to all parents for actual educational expenses of attending any public or private school (including parochial schools), it is valid
Generally, only state laws that intentionally target religious conduct
are subject to strict scrutiny.
The restriction on speech-related activities in nonpublic forums must only be
ationally related to a legitimate governmental interest. For example, a city may sell commercial advertising space inside city buses but refuse to sell such space for political advertising in order to avoid the appearance of favoritism and imposition on a captive audience.
Age discrimination
barred by statute but not suspect classification. rational basis.
NOT a power of congress
promote the general welfare
capable of repetition, yet evading review exception to mootness
capable of repetition, yet evading review A case will not be dismissed as moot if the controversy is a type that may often recur ("capable of repetition") but that will not last long enough to work its way through the judicial system ("yet evading review"). The most cited example of this exception is Roe v. Wade, 410 U.S. 113 (1973), when the state argued that the case was moot because the plaintiff, who was challenging a Texas statute forbidding abortion, was no longer pregnant by the time the case reached the Supreme Court. Because of the relatively short human gestation period (compared to a lawsuit), abortion litigation was readily capable of being repeated, but also likely to evade review, and the case was not dismissed as moot.
In violation of due process, a law that fails to give _________ of what is prohibited is void for vagueness. In violation of the Free Speech Clause, a law that burdens substantially more speech that is necessary to protect a _________ government interest is void for overbreadth.
clear notice; compelling
Examples of loss of liberty include
commitment to a mental institution, parole revocation, and loss of parental rights. Injury to reputation alone is not a deprivation of liberty, unless the injury is so great that the individual has lost significant employment or associational rights.
regulatory taking
compensation not required even if the taking reduces the value of the property to you
ex post facto law
confined to a retroactive change to a criminal or penal law. A law that is civil in purpose is treated as a criminal law only if its punitive effect clearly overrides its civil purpose.
The display of a monument on public property, even if the monument has been donated by a private person,
constitutes government speech
A law or regulation that permits a governmental official to restrict speech (e.g., requires an official to issue a permit before a rally can be held) must provide
definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application. Such a law or regulation must be related to an important governmental interest and contain the procedural safeguards mentioned above. A statute that gives officials unfettered discretion is void on its face; speakers need not apply for a permit and may not be punished for violating the licensing statute.
intelligible standard
delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Almost any legislative delegation passes the "intelligible standards" requirement, so even broadly phrased standards have been upheld.
To trigger strict or intermediate scrutiny, there must be
discriminatory intent on the part of the government.
law denies the rights to everyone violates
due process
prior restraint
egulation of speech that occurs in advance of its expression (e.g., publication or utterance). Prior restraints are generally presumed to be unconstitutional, with limited exceptions.
President power to
enforce the law. not make it, not break it
law denies the rights of some persons but not others violates
equal protection
While an election in which members of a governmental unit (e.g., county council members) are elected by all voters within that unit (i.e., an at-large election) does not violate the one-person, one-vote rule, it may conflict with
equal protection Note: Federal law bans at-large elections for congressional representatives in states that have more than one House member (i.e., the single-member district rule).
The government may limit contributions to individual candidates because
excessive contributions to candidates create a danger of corruption and the appearance of corruption. However, because aggregate limits on the amount a donor may contribute to candidates for federal office, political parties, and political action committees restrict participation in the political process and do little to further the prevention of "quid pro quo" corruption or the appearance of such corruption in campaign financing, they are invalid under the First Amendment.
congressional authorization re: executive agreements
executive agreements may be made pursuant to prior (or subsequent) congressional authorization or pursuant to the President's authority over foreign affairs.
Congress limits the President's military activities through
exercise of its military appropriation (i.e., funding) power. The questions of whether and to what extent the President may deploy troops overseas without congressional approval is unsettled; presidents routinely do so, and Congress routinely asserts its authority to approve the deployment. The courts have generally left the question to the political branches.
Federal law may also contain "savings clauses" that
explicitly preserve or allow state laws that regulate in the same area (e.g., the Clean Water Act preserves "any right which any person (or class of persons) may have under any statute or common law,
The government may limit contributions to a political party that are used to
expressly advocate for the election or defeat of a particular candidate (also known as "hard money") as well as contributions that are used for other purposes, such as promoting the party itself (also known as "soft money").
just compensation means
fair market value at the time of the taking
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 (teacher required to pay union dues, lawyer required to join a bar association). but student can be forced to pay even when they don't agree as long as the fee is allocated in accord with a viewpoint neutral scheme.
The government cannot deny an indigent person access to the court system because of
his inability to pay the required court fees, if such imposition of fees acts to deny a fundamental right to the indigent. Due process requires such fees to be waived. Conversely, if the matter does not involve a fundamental right, no waiver is required. To deny an indigent the right to appeal through the imposition of a fee violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
when is strict scrutiny applied
fundamental right
contraceptive
fundamental right to buy contraception
strict scrutiny
fundamental right will be upheld if the law is (1) the least restrictive means to achieve a (2) compelling governmental interest. The law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended). suspect classification or fundamental right
compelling interest
generally understood to be something that is necessary or crucial, such as national security or preserving public health or safety.
adverse economic impact in and of itself does not
get you compensation for a taking
summary of establishment clause: prohibits gov't endorsement in a context that might prove coercive on an individual's conscience
gov't can't endorse one religion over another and gov't can't endorse religion over non-religion
STATE ACTION: discrimination
gov't cannot be significantly involved in private discrimination. gov't cannot facilitate, cannot profit from, gov't cannot enforce an agreement to discriminate. gov't not required to prevent private discrimination
regulatory taking
gov't doesn't occupy property. only where regulation leaves no economically viable use for the property. rare.
practical difference btw public forum and designated/limited public forum
government can change a designated forum to a nonpublic forum, but it cannot do the same with a traditional forum.
commity clause
guarantees privileges and immunities of state citizenship. prevents serious discrimination of out of state individuals absent justification. does not protect out of state corporations no residency requirement for private employment. but public is employment, its ok to only extend to residents ok to discriminate for non serious things like recreation activities like hunting licenses
exam tip: never a strong argument that something violates privileges and immunities clause under 14th amendment
has almost no meaning, usually wrong answer
A designated (or limited) public forum
has not historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours.
The following requirements have been held not to impose an undue burden on abortion:
i) A requirement that only a licensed physician may perform an abortion; ii) A requirement that the physician must provide the woman with truthful information about the nature of the abortion procedure, the associated health risks, and the probable gestational age of the fetus; iii) A requirement that a woman must wait 24 hours after giving informed consent before the abortion is performed; iv) A requirement that a minor obtain her parents' consent, or if consent is not required, provide the parents with notice of the abortion. However, this requirement has been found to be an undue burden unless, at least for mature minors, the consent requirement can be judicially bypassed. v) A ban on a particular uncommon abortion technique, Gonzales v. Carhart, 550 U.S. 124 (2007). The Court found that the State may use its regulatory power to bar certain procedures and substitute others if it has a rational basis to act and it does not impose an undue burden. An undue burden has been found when a state requires a woman to notify her husband before having an abortion.
discriminatory tax
i) A tax that discriminates against nonresident individuals ii) A discriminatory tax on out-of-state businesses, even if authorized by Congress and therefore allowed under the Commerce Clause, may still violate the Equal Protection Clause of the Fourteenth Amendment, if there is no rational basis to support it.
To be considered obscene, the average person, applying contemporary community standards, must find that the material, taken as a whole:
i) Appeals to the "prurient interest"; ii) Depicts sexual conduct in a patently offensive way; and iii) Lacks serious literary, artistic, political, or scientific value. (first 2 prongs= community standard; 3rd is national standard.)
In either type of public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions:
i) Are content-neutral as to both subject matter and viewpoint (i.e., it is not necessary to hear what is said in order to apply the regulation); ii) Are narrowly tailored to serve a significant governmental interest; and iii) Leave open ample alternative channels for communication of the information. SAMPLE: Because the city opened the baseball park to advertisers of all kinds, the city-owned baseball park is a public forum. A content-based regulation of speech in a public forum is subject to strict scrutiny. Thus, the regulation must be necessary to achieve a compelling government interest, and narrowly tailored to meet that interest. Preserving the light-hearted nature of a baseball game and preventing the possible loss of other advertising revenue is likely not a compelling interest. ID#3253
Federal preemption is implied when any of the following circumstances exist:
i) Congress intended for federal law to occupy the field ii) The state law directly conflicts with the federal law by, for example, requiring conduct that is forbidden by the federal law or making it impossible (or nearly so) to comply with both iii) The state law indirectly conflicts with federal law by creating an obstacle to or frustrating the accomplishment of that law's purpose
federal or state statute will be struck down as being ex post facto if it:
i) Criminalizes an act that was not a crime when it was originally committed; ii) Authorizes, after an act was committed, the imposition of a more severe penalty on that act; iii) Deprives the defendant of a defense available at the time the act was committed; or iv) Decreases the prosecution's burden of proof required for a conviction to a level below that which was required when the alleged offense was committed.
Intentional discrimination against males is generally struck down for violating equal protection. However, there have been some instances of discrimination against men being upheld because of the important governmental interest:
i) Draft registration of males, but not females ii) A statutory rape law that held only men criminally liable for such conduct (interest in preventing teenage pregnancy).
When one's liberty or property interests are adversely affected by governmental action, two questions are asked:
i) Is the threatened interest a protected one? ii) If so, what process is due?
A governmental action that benefits religion is valid if:
i) It has a secular purpose; ii) Its principal or primary effect neither advances nor inhibits religion; and iii) It does not result in excessive government entanglement with religion. Lemon test
Generally, religious activities conducted in public schools violate the Establishment Clause. For example:
i) Prayer and Bible reading, ii) A designated period of silence for "meditation or voluntary prayer," iii) Nondenominational prayer led by a cleric at graduation ceremonies, iv) Posting the Ten Commandments on public-school classroom walls, v) Prohibiting the teaching of Darwinism (i.e., human biological evolution), or mandating that such teaching be accompanied by instruction regarding "creation science,"
"Doing business" taxes: Taxes levied against companies for the privilege of doing business in a state (made up of privilege, license, franchise, or occupation taxes) are valid as long as they meet the basic taxation requirements:
i) The activity taxed must have a substantial nexus to the taxing state; ii) The tax must be fairly apportioned; iii) The tax may not discriminate against interstate commerce; and iv) The tax must be fairly related to the services provided by the state. Such a tax may be measured by a flat annual fee or by a graduated rate proportional to the amount of revenue derived from the taxing state. The burden of showing that a tax is unfairly apportioned is on the taxpayer.
Restrictions on commercial speech are reviewed under a four-part test:
i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited); ii) The asserted governmental interest must be substantial; iii) The regulation must directly advance the asserted interest; and iv) The regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a "reasonable fit" between the government's ends and the means chosen to accomplish those ends.
Full faith and credit requires that out-of-state judgments be given in-state effect. Must meet 3 requirements:
i) The court that rendered the judgment must have had jurisdiction over the parties and the subject matter; ii) The judgment must have been on the merits rather than on a procedural issue; and iii) The judgment must be final.
A state may tax the "instrumentalities of commerce" (airplanes, railroad cars, etc.), provided that:
i) The instrumentality has a taxable situs within—or sufficient contacts with—the taxing state (i.e., it receives benefits or protection from the state); and ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state.
The Court considers three factors in determining the amount of process that is due:
i) The private interest affected by the governmental action; ii) The risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and iii) The burden (fiscal and administrative cost) involved in providing the additional process.
Governmental regulation of expressive conduct is upheld if:
i) The regulation is within the government's power to enact (e.g., through a local government's police power); ii) The regulation furthers an important governmental interest; iii) The governmental interest is unrelated to the suppression of ideas; and iv) The burden on speech is no greater than necessary.
Incitement. A state may forbid speech that advocates the use of force or unlawful action if:
i) The speech is directed to inciting or producing imminent lawless action; and ii) It is likely to incite or produce such action (i.e., creates a clear and present danger).
Rare exceptions to prior restraints require at a minimum that:
i) There is a particular harm to be avoided (like publication of troop movements); and ii) Certain procedural safeguards are provided to the speaker. Examples of such safeguards include: a) The standards must be narrowly drawn, reasonable, and definite b) The censoring body must promptly seek an injunction, c) There must be a prompt and final judicial determination of the validity of the restraint
freedom not to speak
i.e. child's right to not say the pledge of allegiance. the private organizers of a parade cannot be compelled by the government to include in the parade a group that espouses a message with which the organizers disagree. owever, a state can compel a 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.
Congress may not shield appointees from removal by the President by
imposing a multi-tiered system in which persons at each level may be removed from office only for good cause.
necessary and proper not a free standing power of congress
it is only an add on - never choose it by itself
Discrimination based on gender is "quasi-suspect" and subject to
intermediate scrutiny. Just as with suspect classifications and fundamental rights, there must be discriminatory intent by the government to trigger intermediate scrutiny; disparate impact is not enough. Under intermediate scrutiny, the burden is on the state to show that a statute or regulation that treats the sexes differently is substantially related to an important governmental interest.
Standard of review for statutes limiting campaign contributions
intermediate scrutiny: they must be "closely drawn" to correspond with a sufficiently important interest.
Classifications on the basis of status as a nonmarital child (i.e., those that distinguish between "legitimate" and "illegitimate" children) are subject to
intermediate scrutiny—they must be substantially related to an important governmental interest. The Court will closely examine the purpose behind the distinction, and it will not uphold legislation designed to punish the offspring of a nonmarital relationship.
When a public school, as a designated (limited) public forum, permits the public to use its facilities,
it cannot discriminate against organizations based on its beliefs. a public school may provide funding and other benefits (e.g., free use of facilities) to student groups, but it must do so on a viewpoint-neutral basis.
Under the supremacy clause, 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.
A statute is "void for vagueness" if
it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.
A school district may not assign students to schools on the basis of race unless
it is necessary to accomplish a compelling interest—e.g., remedy past discrimination. However, a district may use facially race-neutral criteria that may have the same effect, such as strategic site selection for new schools or the redrawing of attendance zones.
gag order
judicial order prohibiting the press from publishing information about court proceedings. Such orders are subject to prior-restraint analysis. Gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant's right to a fair trial. The trial judge has other alternatives available, such as change of venue, postponement of the trial, careful voir dire, or restricting the statements of lawyers and witnesses.
private property shall not be taken for public use without
just compensation
Second Amendment right to bear arms not unlimited.
lawful regulations include imposing conditions and qualifications on the commercial sale of arms, as well as prohibitions on (i) concealed weapons, (ii)possession of firearms by felons and the mentally ill, and (iii) carrying guns in schools, government buildings, and other sensitive places are presumed to be legitimate.
The Court will generally apply the strict scrutiny test and strike down state laws that discriminate against aliens, such as
laws prohibiting aliens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs.
president power can be controlled by
legislation
bill of attainder
legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. It applies only to criminal or penal measures. Barring particular individuals from government employment qualifies as punishment under the prohibition against bills of attainde
Financial assistance by the government that is widely available to a class of persons (not defined by religion) is
likely valid, even if the aid benefits religion in some way. i.e. books, school lunches, etc. Under the Lemon test, these forms of financial aid all have a secular primary purpose, neither advance nor inhibit religion, and have an extremely low risk of excessive entanglement. Giving parents tuition vouchers to assist them in paying religious-school tuition does not violate the Establishment Clause if the vouchers may also be used in non-religious private schools.
An unexplained deviation of less than one percent in congressional districts
may invalidate the statewide congressional district plan. Variations may be justified by the state on the basis of consistently applied, legitimate state objectives, such as respecting municipal political subdivision boundaries, creating geographic compact districts, and avoiding contests between incumbent representatives.
Injury is not
mere ideological objection
When governmental action constitutes a taking, the government cannot escape all liability by returning the property to its owner, but instead
must pay the owner compensation for the period that the government possessed the property.
An express preemption must be
narrowly construed
the government may regulate the content of speech only if the regulation is
necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., the strict scrutiny test).
government speech (public service announcements, agricultural marketing campaigns, etc.)
need not be viewpoint neutral. not regulated by first amendment.
where gov't does not phsyically occupy your property
no taking so no taking and no compensation i.e. zoning as long as zoning advances legitimate interests and doesn't extinguish a fundamental attribute of ownership
A public employee who may be discharged only for cause has a property interest in his job and therefore is entitled to
notice of termination and a pretermination opportunity to respond. A formal hearing is not required, as long as there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing.
government may restrict speech on the basis of content if the speech falls into one of the following historic and traditional categories:
obscenity, subversive speech, fighting words, defamation, or commercial speech.
EXAM NOTE: If, on a question, a fundamental right is being infringed upon for all persons, the issue is likely
one of substantive due process.
Voter approval of a redistricting plan will not justify a violation of
one person, one vote"
federal judges may be removed
only by impeachment
Neutral laws of general applicability that have an impact on religious conduct are subject
only to the rational basis test.
Undue Burden on Interstate Commerce: balancing test
only when costs are outrageously high in relation to benefits will it be struck down
public forum
place traditionally reserved for speech activities. sidewalks, streets, parks.
Federal government, unlike the states, does not have a
police power
congress property power
power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." There is no express limit on Congress's power to dispose of property owned by the United States. Under the Fifth Amendment, however, Congress may only take private property for public use (eminent domain) with just compensation and in order to effectuate an enumerated power.
plenary power
power to raise revenue through the imposition of taxes. The government has no burden to prove that the tax is necessary to any compelling governmental interest. Instead, the General Welfare Clause has been interpreted as permitting Congress to exercise its power to tax for any public purpose. (Note: This clause has been interpreted as having the same effect on the spending power, as discussed at § II.B.2. Spending, infra.) While the General Welfare Clause gives Congress broad power in exercising its spending and taxing powers, it does not give Congress the specific power to legislate for the public welfare in general. Such "police power" is reserved for the states.
when the president acts when Congress has spoken to the contrary
presidential authority is "at its lowest ebb," and the action is likely invalid.
when the president acts with the express or implied authorization of congress
presidential authority is at its highest, and the action is strongly presumed to be valid
when the president acts when Congress has not spoken
presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government
Undocumented aliens Undocumented aliens are not a suspect class, but the states may not deny
primary or secondary public education benefits to undocumented aliens.
fundmental right of abortion
privacy right must be considered along with the state's compelling interests in protecting both the health of the pregnant woman and the potential life of the fetus. The resulting rule allowed for varying degrees of state restriction based on the trimester of the pregnancy. The current standard is the "undue burden" test, the meaning of which depends on whether the fetus is viable (likely to survive outside the womb).
There is an exception for wealth classification as rational basis in cases in which governmental action
prohibits the poor from exercising a fundamental right because of a government-imposed fee; strict scrutiny will usually apply in those situations. For example, the availability of appeal in a criminal case cannot hinge on ability to pay for a trial transcript. Also, poll taxes are unconstitutional because wealth is unrelated to a citizen's ability to vote intelligently. Also, can't be too poor to get divorced.
Foreign Commerce
prohibits the states, without the consent of Congress from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods, except what is absolutely necessary for executing its inspection laws.
legislative immunity: speech or debate clause
protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. The activities of congressional aides are also protected if a legislator performing the same acts would be immune.
A district's bizarre shape can be used as evidence that
race was a predominating factor, but such a shape is not necessary for a finding of racial gerrymandering.
Neutral state laws of general applicability that have the incidental effect of interfering with one's ability to engage in religious practices are subject
rational basis Example: A parent's right to pray over a child who has contracted meningitis, rather than seeking medical assistance, may be limited by state child-neglect and manslaughter laws. Parents do not have the right to endanger the lives of their children on the grounds of freedom of religion
Most statutes and regulations that classify on the basis of wealth (i.e., discriminate against the poor) are subject only to
rational basis scrutiny and will be upheld.
public use need only be
rationally related to a conceivable public purpose
rational basis test
rationally related to a legitimate state interest. This is a test of minimal scrutiny and generally results in the law being upheld. Hard to flunk, use when not race, not suspect classification, no legitimacy, no gender, no fundamental right. its residual to strict and intermediate.
Voting Rights Act
requires racial gerrymandering to ensure minority success in elections by creating majority-minority districts (i.e., affirmative gerrymandering). Formula used as a basis for subjecting jurisdictions to preclearance has been declared unconstitutional because it no longer reflects current conditions; therefore, it can no longer be used.
An impingement on liberty is generally construed to mean
significant governmental restraint on one's physical freedom, exercise of fundamental rights (i.e., those guaranteed by the Constitution), or freedom of choice or action.
congress can use ______ to accomplish things it could not control under direct application of the commerce clause
spending power Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly by conditioning federal funding. See South Dakota v. Dole, 483 U.S. 203 (1987) (statute upheld withholding federal highway funds from states unless they barred the sale of alcoholic beverages to individuals under the age of 21).
States prohibited from passing any law "impairing the obligation of contracts." This prohibition applies only to
state legislation—not state-court decisions and not federal legislation—that retroactively impairs contractual rights. It does not apply to contracts not yet entered into.
The Eleventh Amendment generally prohibits a suit against a _________ for _________.
state; money damages
standard of review when the government purposely targets conduct because it is religious or displays religious beliefs.
strict scrutiny
standard of review for attempts to fire or penalize a government employee for speech on matters of "public concern"
strict scrutiny However, speech on matters of public concern made in furtherance of the public employee's job functions receives less protection under the First Amendment than speech made by a person acting outside of his job.
standard of review for restrictions on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate
strict scrutiny. so long as the source of the funding is disclosed, there is no legal limit to the amount that corporations and unions may spend on "electioneering communications."
intermediate scrutiny
substantially related to an important interest legitimacy and gender
A journalist has no First Amendment right to refuse to
testify before a grand jury regarding the content and source of information relevant to the criminal inquiry.
Government holiday displays will generally be upheld unless a reasonable observer would conclude
that the display is an endorsement of religion. he context of the display is key—a nativity scene in a courthouse under a banner reading "Gloria in Excelsis Deo" was struck down as endorsing religion, but a nearby outdoor display of a Christmas tree, Chanukah menorah, and other seasonal symbols was upheld as mere recognition that Christmas and Chanukah are both parts of a highly secularized winter holiday season.
In the exercise of Fourteenth Amendment powers, Congress can override
the Eleventh Amendment immunity of states.
Race may not be considered unless
the admissions process used to achieve a diverse student body can withstand strict scrutiny. Strict scrutiny here requires the university to clearly demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose.
if the president does not sign a bill within the 10 day period
the bill becomes law without the President's signature. If Congress has adjourned during that time, however, the bill does not become law, because the President could not have returned it to its originating house. The President's failure to act on a bill in this situation is known as the "pocket veto" and cannot be overridden.
Partisan political gerrymandering may violate the Equal Protection Clause if
the challenger can show "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." lack of comprehensive and neutral principles for drawing electoral boundaries as well as the absence of rules to confine judicial intervention can prevent adjudication of political gerrymandering claims.
States may not prohibit children of unmarried parents from receiving
welfare benefits, workers' compensation benefits upon the death of a parent, or an inheritance from an intestate father
The "one person, one vote" rule applies to local elections of entities that perform governmental functions, even when
the functions are specialized rather than general in nature. The restriction of voting to a class of persons (e.g., landowners) and the allocation of voting weight on a basis other than personhood (e.g., the amount of land owned) has been upheld only with regard to water-district elections.
The burden to prove that the material to be censored is not protected speech is on
the government
State legislation that substantially impairs a contract between private parties is invalid, unless
the government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest.
Government grants to religiously affiliated colleges and hospitals are upheld only if
the government requires that the aid be used only for nonreligious purposes.
The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as
the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did.
Classifications based on status as a lawful resident of the United States (as opposed to a citizen) are subject to a variety of different standards, depending on
the level of government and the nature of the classification.
First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as
the news story involves a matter of public concern.
when the government establishes voting districts for the election of representatives,
the number of persons in each district must be approximately equal. exception: very limited gov't i.e. water rights district, a specialized franchise can address that purpose
When only a portion of an owner's property is taken
the owner may also receive compensation for any diminution in value of the remaining portion that is attributable to the taking but must reduce any compensation by the value of any special and direct benefits (e.g., a highway access) conferred on the remaining portion.
Limits on punishment for defamatory speech may apply in cases in which
the plaintiff is a public official or public figure, or when a defamatory statement involves a matter of public concern. In addition to the elements of a prima facie case of defamation, the plaintiff must in these cases prove both fault and the falsity of the statement.
If the plaintiff is a private figure but the defamatory statement involves a matter of public concern, t
the plaintiff must establish negligence with respect to the falsity of the statement.
If you see the word "appropriation" on the exam
the power to tax and spend is likely a consideration.
"ministerial exception" to federal and state employment discrimination laws
the purpose of the ministerial exception is not merely to safeguard a church's decision to discharge a minister when it is made for a religious reason but also to ensure that the authority to select and control who will serve as a minister to the church's faithful, a strictly ecclesiastical matter, is solely the church's decision. The exception operates as an affirmative defense to an otherwise cognizable claim, but not as a jurisdictional bar.
A sales tax imposed on the seller of goods is valid as long as
the sale takes place within the state. Sales tax generally does not discriminate against interstate commerce as long as there is a substantial nexus between the taxpayer and the state (e.g., his business is there), and the tax is properly apportioned.
Because of the state's compelling interest in protecting minor children from exploitation
the sale, distribution, and even private possession of child pornography may be prohibited, even if the material would not be obscene if it involved adults. Simulated child pornography (i.e., pornography using young-looking adults or computer-generated images) may not be banne However, offers to sell or buy simulated child pornography that contain actual depictions of children even though the sexually explicit features are simulated may be criminalized when the material is presented as actual child pornography. d as child pornography.
a ratified treaty
the supreme law of the land," so long as it does not conflict with any provision of the Constitution, and it takes precedence over any inconsistent state law. A treaty has the same authority as an act of Congress; should the two conflict, the one most recently adopted controls. Note that a non-self-executing treaty (one that requires legislation in order to implement its provisions) does not have the same force of law as an act of Congress until legislation is passed effectuating the treaty; the treaty serves as an independent source of authority for Congress to legislate, separate from its enumerated powers. The Constitution is superior to a treaty, and any conflict is resolved in favor of the Constitution.
right for public and press to attend trial may be outweighed if
the trial judge finds an overriding interest that cannot be accommodated by less restrictive means.
A use tax on goods purchased out of state but used within the taxing state is valid so long as
the use tax rate is not higher than the sales tax rate on the same item. Even though a use tax does, on its face, seem to discriminate against out-of-state purchases, the rationale for its validity is that such a tax equalizes the tax on in-state and out-of-state goods.
EXAM NOTE: If, on a question the right is being denied to only a particular class of persons,
then equal protection is in play.
If an injunction is content-neutral
then the test is whether it burdens no more speech than is necessary to achieve an important governmental interest.
Congress may override the veto and enact the bill into law by
two-thirds vote in each house.
voting and ballot access residency requirements
typically 30 days. restrictions on vote are hard to maintain. filing fees for candidates, nominating conditions. so long as candidates can reasonably comply its probably ok
A law that regulates expressive conduct (i.e., symbolic speech) is upheld if it furthers an important government interest, that interest is _________, and the burden on expression is ________________.
unrelated to the suppression of expression; no greater than is necessary
content based regulations
usually struck down.
content neutral regulations
usually upheld. time, place, or manner.
Property-tax exemptions for religious institutions have been held
valid as being equivalent to exemptions given to other charitable organizations and therefore neither advancing nor inhibiting religion. Tax exemptions that are available only for religious activities or organizations, however, violate the Establishment Clause as an endorsement of religion.
EXAM NOTE: When determining whether a position or license from which aliens are excluded falls under the government function or political function exception, consider
whether the position or license would allow the alien to "participate directly in the formulation, execution, or review of broad public policy" or would allow the alien to exercise "broad discretion."
Congress may override state government action that infringes upon Fourteenth Amendment rights, but it may not under this amendment regulate
wholly private conduct.
executive privilege
with respect to the disclosure of confidential information by the executive branch to the judiciary or Congress. This privilege and the more narrow presidential privilege, which applies to communications made in the performance of a president's responsibilities to shape policies and make decisions, have been recognized by the Supreme Court. The presidential privilege survives an individual president's tenure, but this privilege is not absolute.
The fact that legislation has a disparate effect on people of different races, genders, etc.,
without intent, is insufficient. Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive.
A speaker may be criminally punished for using "fighting words," which are
words that by their very nature are likely to incite an immediate breach of the peace. Words that are simply annoying or offensive are not fighting words; there must be a genuine likelihood of imminent violence by a hostile audience. EXAM NOTE: Attempts to forbid fighting words almost always fail as vague, overbroad, or otherwise constitutionally infirm.