MBE Constitutional Law

Separation of Powers 3. Inter-branch Checks Upon the Exercise of Federal Power

1. Congressional Limits on the Executive Rule/Foreign Affairs: If Congress is acting within its constitutional powers, Congress may block the president from acting. Rule/Impeachment Power: 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; (a) the House of Representative has the sole power to impeach; (b) the Senate has the sole power to try impeachments. A two-thirds vote in the Senate is required for conviction [U.S. Const. art. II, Sec. 4]. Rule/Legislative Veto: (1) A legislative veto occurs when Congress enacts a law containing a provision that Congress can change the law without a new Congressional vote or presidential signature. (2) The S. Ct. has held that a legislative veto violated the constitution requirements of bicameralism and presentment to the president [Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983)]. Rule/Investigative Power: Under the Necessary and Proper Clause, Congress has the implied power to conduct investigations concerning all matter over which Congress has jurisdiction. Rule/Delegation to Executive: On numerous occasions Congress has delegated to the executive branch the authority to make rules having the power of law (through rulemaking by such agencies, (such as the Department of Health, Education, Welfare; the EPA; and the Nuclear Regulatory Commission). Rule/Appropriations Power: When Congress by legislative act explicitly directs the president to spend appropriated money, the president has no power to impound (i.e., refuse to spend or delay spending) the authorized funds. 2. Presidential Limits on Congress Rule/Presidential Limits on Congress: Every act of Congress must be approved and signed by the president before it can become law, or, being disapproved, must be passed by two-thirds vote of each House [U.S. Const. art. I Sec. 7]. 3. Judicial Limits on Congress and the President Rule/Judicial Limits on Congress and the President: The federal judiciary is the ultimate arbiter of cases whose disposition depends upon construction of the Constitution, an act of Congress, or a federal treaty [U.S. Const. art. III Sec. 2].

Equal Protection Under the Laws 1. Constitutional Basis 2. Standards of Review 3. Proving Discrimination 4. Suspect Classifications

1. Constitutional Basis Rule/The Fourteenth Amendment/Equal Protection: The Fourteenth Amendment provides that no state shall "deny to any person within it's jurisdiction the equal protection of the laws. The S. Ct. has ruled that equal protection also applies to the federal government under the DP Cl. of the 5th Am. The guarantee of substantive due process assures that a law will be fair and reasonable, not arbitrary, equal protection review is triggered where similarly situated persons are treated differently. (a). Substantive due process review: apples where a law affects the rights of all persons with respect to a specific activity (e.g., state law prohibits thee sale of birth control devices except by prescription). (b). Equal protection review applies where: a state law affects the rights of some persons with respect to a specific activity (e.g., a state law prohibits the sale of both control devices to unmarried persons). 2. Standards of Review Rule/Strict Scrutiny: Strict Scrutiny Standard: the burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest. (a). The word necessary means that there is no less restrictive alternative means available. There must be a very close fit between the means and the end; (b). The government usually fails to prove its burden under s/s, so an equal protection challenge to a law is generally unsuccessful (i.e., the law is presumptively invalid); and (c). Strict scrutiny review applies to government action that uses suspect classifications - race, alienage, and national origin. Rule/Intermediate Scrutiny: Intermediate Scrutiny Standard, the government of persuasion is placed on the government to prove that the measure being challenged is substantially related to the achievement of an important government interest. (a). substantially related, means that an exceedingly persuasive justification must be shown. (b). intermediate scrutiny applies to government action using quasi-suspect classifications - gender and legitimacy. Rule/Rational Basis: Rational Basis Review: the burden of persuasion is on the plaintiff to show that the measure being challenged serves no legitimate government interest and is not rationally related to any legitimate interest. (a). Rational relationship is a minimal requirement which means that the law cannot be arbitrary or unreasonable; (b). Practically any police power regulation which furthers a health and safety or welfare purpose will be found legitimate. For this reason, laws scrutinized under rational basis are almost always upheld; (c)). Rational basis review applies to all classifications not falling under strict or intermediate scrutiny, such as classifications based on age, poverty, wealth, disability, and need for necessities in life (food, shelter, clothing, medical care). 3. Proving Discrimination Rule/Discriminatory Intent/Facial Discrimination/Facially Neutral but Discriminative in Application/Shows a Discriminatory Purpose: Purposeful Discrimination - must be shown to trigger strict scrutiny. Mere discriminatory effect is insufficient. Discriminatory intent may be shown facially, as applied, or where a discriminatory motive exists. (a) Facial Discrimination: arises where a law, by its very language creates distinctions between classes of persons (e.g., only white, male U.S. citizens may apply for the state police department); (b) Where a law that appears neutral on its face but in its application has a disproportionate effect on a particular class of persons, strict or intermediate scrutiny will apply only if the court finds a discriminatory purpose exists. [Washington v. Davis, 463 U.S. 229 (1976), strict scrutiny not triggered because testing for the police force did not per se prove discriminatory purpose in hiring practices because black applicants scored lower than white applicants]; (c) A facially neutral law can be applied in a discriminatory manner. When the challenger can show a discriminatory purpose, the law will be invalidated. [Yick Wo v. Hopkins, where a law prohibited the operation of laundries in wood buildings, most of which owned by Chinese individuals, was only enforced by government officials in a discretionary manner; the S. Ct. found that purposeful discrimination in the application of the law violated equal protection]. 4. Suspect Classifications (a) Strict Scrutiny Rule: Strict Scrutiny: applies to classifications based on race, alienage, and national origin. Such laws will be presumptively invalid absent a showing by the state that the measure is necessary o achieve a compelling state interest. Rule/Interracial Marriage and Cohabitation: (a) a state law prohibiting interracial marriages was held unconstitutional [Loving v. Virginia. 388 U.S. 1 (1967)]. Similarly a state law prohibiting interracial cohabitation was held invalid [McLaughlin v. Florida, 379 U.S. 184 (1964)]. Rule/Deliberate De Jure Segregation: deliberate de jure segregation violates equal protection [Brown v. Board of Education , 347 U.S. 483 (1954); Plessy is v. Ferguson, 163 U.S. 537 (1896)]. Various plans to hinder desegregation have been deemed unconstitutional, including the closing of all public schools [Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964). Rule/Public Aid to Private Segregated Schools: The S. Ct. has held that public aid to private segregated schools - such as tuition grants and the exclusive use of public facilities is unconstitutional [Norwood v. Harrison, 413 U.S. 455 (1973)]. Rule/School Board's Duty to Eliminate Segregation: School boards have an affirmative duty to eliminated the intentional racial segregation of schools. Rule/Court Ordered Busing: Court-ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system. rather than to attract nonminority students from outside district to achieve integration. Court-ordered busing is a temporary measure that must be terminated once the vestiges of past discrimination have been eliminated [Board of Education v. Dowell, 498 U.S. 237 (1991)]. Rule/Gerrymandering: Where it can be shown that race was the predominant factor in defining the border of the new election districts (rather than contiguity, compactness, or community interest), then such a plan will be subject to s/s [Miller v. Johnson, 515 U.S. 900 (1995)]. Rule/State Discrimination Against Aliens: The court will generally apply s/s when a state law discriminates against aliens. (b) Intermediate Scrutiny Rule/Intermediate Scrutiny/Illegitimate Children: Distinctions drawn between legitimate and illegitimate children are subject to intermediate or quasi-suspect standard [Mathews v. Lucas, 427 U.S. 495 (1976)]. As a result, it is now close to the almost suspect standard used for gender discrimination [Mills v. Habluetzel, 456 U.S. 91 (1982)]. (1) Classifications must be substantially related to an important state interest; (2) classifications that favor legitimates and disfavor illegitimates are generally struck down because the overriding government interest in this area is not to punish the offspring of an illicit relationship. (a) The S. Ct. struck down a state law that permitted legitimate children, but not illegitimate children, to maintain a wrongful death action [Levy v. Louisiana, 391 U.S. 68 (1968)]. (b) The S. Ct. invalidated a state law that excluded illegitimate children from sharing equally with other children in worker's compensation death benefits [Weber v. Aetna Casualty and Surety Co., 406 U.S. 164 (1972)]; (c) Illegitimate children are entitled to welfare benefits [New Jersey Welfare Rights Organization v. Cahill, 414 U.S. 619 (1973)]. Rule/Intermediate Scrutiny/Alien Discrimination: As with federal laws that discriminate against aliens, the S. Ct. has been more lenient in applying an intermediate standard of scrutiny of illegitimacy under federal law than under state law. The S. Ct. upheld a federal law granting immigration preferences to legitimate children as within Congress's plenary power to regulate immigration [Fiallo v. Bell, 430 U.S. 787 (1977)]. (a) In 2012, the Court permitted to stand a law that required officers to verify the immigration status of anyone they stopped, detained, or arrested who they reasonably suspected was in the country illegally [Arizona v. United States, 567 U.S. _(2012), Docket No. 11-182]. Rule/Intermediate Scrutiny/Classifications Based on Gender: Classifications based on gender are quasi-suspect and violate the Equal Protection Clause unless they serve important government objectives and are substantially related to achievement of those objectives [Craig v. Boren, 429 U.S. 190 (1976). In Craig, an Oklahoma statute permitted the sale of beer to females who were 18 years or older, but prohibited the sale of beer to males under 21 years of age. The statue was held unconstitutional because it was not substantially related to any important government objectives. (Where separate treatment of men and women is found to be proper, a state may offer different, but equivalent, facilities to each gender.) Rule/Intermediate Scrutiny/Invidious or Benign Gender Discrimination: Intermediate scrutiny applies whether the classification is invidious (intended to harm) or benign (intended to held or remedy past discrimination). Intentional, or purposeful, discrimination is required to trigger middle-tier scrutiny; discriminatory effect alone is insufficient. Rule/Intermediate Scrutiny/Gender-based Stereotypes: Statutes that reinforce archaic, gender-based stereotypes will almost certainly be struck down. The S. Ct. required a state to show an exceedingly persuasive justification for its gender discrimination in admissions to the Virginia Military Institute. This language reflects the rigorous nature of the Craig v. Boren Intermediate-level test [United States v. Virginia, 518 U.S. 515 (1996)]. Rule/Intermediate Scrutiny/Laws that Discriminate Against Women: In recent decisions, the Court has held unconstitutional under Equal Protection, all laws discriminating against women. (a) A state law giving preference to men over equally qualified women to be administrators of decedent's estates was held unconstitutional [Reed v. Reed, 404 U.S. 71 (1971)]. (b)Discrimination in military benefits to servicewomen was held invalid [Frontiero v. Richardson, 411 U.S. 677 (1973)]. (c) Similarly, the S. Ct. has held unconstitutional under an equal protection analysis laws discriminating against men [Craig v. Boren, 429 U.S. 190 (1976)]. (d) The Court struck down a law authorizing alimony payments upon divorce to women but not to men [Orr v. Orr, 440 U.S. 268 (1979)]. (e) A New York law that permitted an unwed mother, but not an unwed father, to block adoption of their child was held invalid [Caban v. Mohammed, 441 U.S. 380 (1979)]. (f) The S. Ct. held that the exclusion of males from a state nursing school violated a male applicant's right to equal protection [Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)]. Rule/Intermediate Scrutiny/Exceptions: In some cases, laws discriminating against men have been upheld when they are substantially related to the achievement of an important government interest: (1) The S. Ct. has upheld the registration of males but not females for conscription by the military because of Congress, pursuant to its military powers, had determined that this was necessary to further important interests [Rostker v. Goldberg, 453 U.S. 57 (1981)]. (2) Statutory rape laws that punished the male participant, but not the female accessory, were upheld because they furthered the important state interest in preventing teenage pregnancy [Michael M v. Sonoma County Superior Court, 450 U.S. 464 (1981)]. (c) Affirmative Action Rule/Affirmative Action/Strict Scrutiny: Affirmative action measures based on race must pass strict scrutiny. The only justifications for affirmative action that have been upheld are: (a) remedying the effects of past or present discrimination in a particular institution; and (b) achieving a diverse student body in an institute of higher education. Rule/Affirmative Action/School Districts: A school district may not assign individual students to schools based on race in order to achieve "voluntary integration" or "racial balancing" when school segregation is caused by social factors (de facto segregation) and not caused by past or present government action (de jure segregation). HOWEVER, a school district is permitted to carry out such a voluntary racial balancing by structural measures, such as redrawing school zones or building new schools. Affirmative action measures based on race must be narrowly tailored to achieve their goals. The institution that adopts such a program must show that available, workable non-racial alternatives due suffice. Rule/Bans on Racial Accounts for Public University Admissions: In 2014, the Court upheld a Michigan voter initiative that banned taking account of race in admissions to state's public university [Schuette v. Coalition to Defend Affirmative Action, 572 U.S. _(2014), Docket No. 12-682]. Rule/Rule/Affirmative Action/Gender Discrimination/Intermediate Scrutiny: Affirmative action based on gender need only pass intermediate scrutiny. (1) Social Security statutes and tax exemptions that entitle women to greater benefits have been upheld [Califano v. Webster, 430 U.S. 313 (1977); (2) A U.S. navy discharge procedure that required male officers twice denied promotion to be automatically discharge, whereas female officers were not, was upheld because in the past, men had been afforded greater promotional opportunities than women [Schlesinger v. Ballard, 419 U.S. 498 (1975)]. Rule/Rule/Affirmative Action/State Construction Contracts/Strict Scrutiny: The S. Ct. first held that minority set-asides (affirmative action) established by state or local governments for construction projects - i.e., programs where a fixed percentage of publicly funded money is awarded to minority owned businesses - are subject to strict scrutiny review, and must be narrowly tailored to justify a compelling interest [Richmond v. Croson, 488 U.S. 469 (1989)]. The S. Ct. set forth a clear rule that any race-based affirmative action program designed to remedy past discrimination - whether enacted by a state municipality or eve the federal government is subject to strict scrutiny, [Adarand Construction, Inc. v. Pena [515 U.S. 200 (1995)]. This rule applies to any "benign" or compensatory, program by any government entity that either favors or discriminates against racial or ethnic minorities. Other general principles including the following: (a) remedying past discrimination in a particular government institution is generally viewed as a compelling interest, but attempting to remedy general societal injustice through affirmative action is not; (b) race or ethic origin may be considered as "plus" factor in admissions programs, for the purpose of achieving a diverse student body [Regent of University of California v. Bakke, 438 U.S. 265 (1978)]; and (1) Bakke was affirmed in Grutter v. Bollinger, 539 U.S. 306 (2003), whereby the S. Ct. held that school may take race into account as one of may factors in make admissions decisions (2) HOWEVER, a school may not use admissions system that gives a set number of admissions points to each minority applicant, even of the purpose is to a create a diverse student body. Rule/Discrimination in Private Employers: Discrimination by private employers is not subject to equal protection review. (d) Other Classifications Rule/Age: Age is neither a "suspect" nor "quasi suspect" classification. Thus, laws and other governmental actions against the elderly are judged by the tradition (or rational basis test). The S. Ct. upheld the validity of a Massachusetts statute requiring police officer to retire at age 50 even though they may be as physically fit as younger officers [Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)]. Rule/Poverty: The S. Ct. has held that poverty standing alone is not a suspect classification [Harris v. McRae, 448 U.S. 297 (1980)]. Rule/Mental Retardation: Mental retardation is not a quasi-suspect classification, and the rational basis standard of review is applicable [City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)].

First Amendment Freedoms 1. Freedom of religion and Separation of Church and State 2. Freedom of Expression A. Exceptions to Freedom of Speech B. Conduct Regulation C. Government as a Speaker D. Unprotected Speech E. Time, Place, Manner F. Freedom of Association G. Public Employment H. Prior Restraint I. Vagueness J. Press K. Bar Admission

1. Freedom of Religion and Separation of Church and State Rule: The First Amendment Provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Rule/Establishment Clause: Where a government program prefers one religion or religious sect over others, strict scrutiny analysis will e applied [Board of Education v. Grument, 512 U.S. 687 (1994)]. Where the legislation or government programs contains no religious or sect preference, the S. Ct. will follow the following three-part test under Lemon v. Kurtzman [403 U.S. 602 (1971)]: (1) the statute must have a secular legislative purpose; (2) the principal or primary effect or purpose must neither advance nor inhibit religion; and (3) the statute must not foster an excessive government entanglement with religion. Religious Activities at Public Schools Rule/Establishment Clause/Religious Activities at Public Schools: As a general rule religious activities conducted in public schools violate the Establishment Clause because their primary purpose is to promote religion. The following practices in public schools have been held invalid: (a) prayer and bible reading in public schools [Engel v. Vitale, 370 U.S. 421 (1962); (b) an Alabama law authorizing a period of silence for meditation or voluntary prayer [Wallace v. Jaffree, 472 U.S. 38 (1985)]; (c) posting the Ten Commandments on the walls in public school classrooms [Stone v. Graham, 449 U.S. 39 (1980)]; and (d) a public school sponsoring a rabbi or other cleric to conduct even a nondenominational prayer as part of a graduation ceremony [Lee v. Weisman, 505 U.S. 577 (1992)]. (1) A state legislature may employ a chaplain to conduct an opening day prayer [Marsh v. Chambers, 463 U.S. 783 (1983)]; (2) HOWEVER, a state court judge may not conduct such a daily prayer [North Carolina Civil Liberties Union Legal Foundation v. Constangy, 947 F.2d 1145 (4th Cir. 1991)]. Rule/Establishment Clause/High School Students Voting on School Prayer: High School students being allowed to vote on whether students delivered "invocation" or "message" would take place at school football games is impressible, as such activity would be forced on all those present at a school-sponsored event [Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)]. Rule/Establishment Clause/Religious Student Groups Using School Facilities: A state university regulation prohibiting the use of school facilities by a registered student religious organization was held to be in violation of the freedom of speech under the First Amendment [Widmar v. Vincent, 454 U.S. 263 (1981)]; The S. Ct. has held that prohibiting a religious club from meeting in a public school amounted to religious viewpoint discrimination and violated the Free Speech Clause of the First Amendment. Furthermore, the court ruled, permitting the club to meet on school grounds would not be in violation of the Establishment Clause [Good News v. Milford Central School., 533 U.S. 98 (2001)]. Rule/Establishment Clause/View-Point Neutral Restrictions for University Clubs: The University of California required student groups to open their membership to "all comers." The university denied funding to the Christian Legal Society on the grounds that it refused membership to gays and lesbians. The Court upheld the University's rule against a First Amendment challenge on the grounds that it was a viewpoint neutral restriction. The Court ruled that, in the academic context, the rule was reasonable in light of the goals of ensuring all students are included in the student group program, avoiding the need for the university to inquire into the groups' motives for excluding members, bringing together diverse students, and complying with sate antidiscrimination rules [Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)]. Rule/Establishment Clause/Other Decisions Regarding Religious Activities in Public Schools: Other decisions regarding religious activities in public schools include: (a) prohibition against showing religious films at a school violated free speech [Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 387 (1993)]; (b) a university's refusal to fund a student publication because it addressed issues from a religious perspective violated free speech [Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); and (c) a state university's viewpoint-neutral allocation of mandatory student activities fees to political and ideological groups as part of a program to facilitate extracurricular student speech did not violate the First Amendment rights of students who objected to subsidizing those groups' activities [Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217 (2000)]. Rule/Establishment Clause/Public School Curriculum: Anti-evolution law prohibiting the teaching of Darwinian principles in public schools are unconstitutional [Epperson v. Arkansas, 393 U.S. 97 (1968)]. Other Government Endorsement of Religion Rule/Establishment Clause/Displays to Celebrate Holiday Season: Displays that celebrate the holiday season without favoring one religion over another are generally upheld. The government cannot permit the type of display that a reasonable observer would conclude constitutes an endorsement of religion. The context surrounding the display is a key factor in determining the validity [Lynch v. Donnelly. 465 U.S. 668 (1984)]. (a) The display of a crèche as part of a Christmas display in a park passed the Lemon Test, but a crèche with no other symbols nearby - i.e., a "Seasons Greeting" banner or a Chanukah menorah - and prominently displayed by a private religious group in the county courthouse violated the Establishment Clause [County of Allegheny v. ACLU, 492 U.S. 573 (1989)]. Rule/Establishment Clause/Crosses on State Parks: placing a cross in a state-owned park immediately in front of the state capital was held not to violate the Establishment Clause; there was no endorsement of religion because the park had long been used by a variety of groups to conduct expressive activities [Capital Square Review Board v. Pinette, 515 U.S. 753 (1995)]. Rule/Establishment Clause/Prayer at Town Meeting: Opening town board meetings with sectarian prayers was held to be permissible, with the Court explaining that legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not her and in which they need not participate [Town of Greece v. Galloway, 572 U.S. _(2014), Docket No. 12-696]. Rule/Establishment Clause/Ten Commandment on Court Room Walls: Placement of the Ten Commandments on the walls of court-houses was unconstitutional because there was no secular purpose [McCreary County v. ACLU, 545 U.S. 844 (2005)]. (a) HOWEVER, having the Ten Commandments carved on a six-foot high granite monument in a 22-acre park surrounding the Texas State Capital, and surrounded by 37 other monuments, was held constitutional [Van Orden v. Perry, 545 U.S. 677 (2005)]. (b) The crucial difference between the cases was the extent to which an objective observed would have perceived each display of the Ten Commandments as a governmental endorsement of religion. Rule/Establishment Clause/Sunday Closing Laws: Sunday closing laws have been upheld as a governmental action with mere incidental benefit to religion [McGowan v. Maryland, 366 U.S. 420 (1961)]. (a) Blue law or state statutes giving churches and schools the power to veto applications for liquor licenses within a 500-foot radius of the church or schools were held unconstitutional because of "excessive government entanglement" [larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)]. Tax Deductions for Religious Institutions: Rule/Establishment Clause/Property Tax Exemption: The S. Ct. has upheld the validity of a property tax exemption for religious institutions as the equivalent of exempting other charitable organizations [Walz v. Tax Commission of New York, 397 U.S. 664 (1970)] Rule/Establishment Clause/Sales and Use Tax: A tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the Establishment Clause an endorsement of religion [Texas Monthly v. Bullock, 489 U.S. 1 (1989)]. Government Aid to Religious Schools Rule/Establishment Clause/Direct Gov't Aid to Parochial Schools: Most government programs providing direct aid to parochial elementary and high schools [i.e., teacher salaries] have been held to violate the Establishment Clause because they involve excessive government entanglement. HOWEVER, programs that provide aid to all elementary and secondary students (including parochial school students) have been held to pass the three prong lemon test. Rule/Establishment Clause/Bus Transportation: Providing bus transportation to and from school for all students (including those attending parochial schools) was held valid [Everson v. Board of Education, 330 U.S. 1 (1947). (a) it was also held that necessary municipal services (e.g., police and fire protection) can be provided to churches and church-related institutions. Rule/Establishment Clause/Parent Tax Deductions: If a tax deduction is given to all parents based on actual expenditures for children attending any public, private, or religious school, it will be upheld [Mueller v. Allen, 463 U.S. 388 (1983)]. Rule/Establishment Clause/Textbooks and Tests to Parochial Schools: The S. Ct. permitted the state to furnish textbooks to all students, including those attending parochial schools, because there was little entanglement, and the primary effect was secular [Board of Education v. Allen, 392 U.S. 236 (1968)]. Furnishing standardized secular examinations to parochial school students was held valid because the materials did not contain any religious content [Wolman v. Walter, 433 U.S. 229 (1977)]. Rule/Establishment Clause/Public Health Services and Lunch Programs to Parochial Schools: Public health services, including a school lunch program, can be provided to all students, since their purpose and effect are secular [Lemon v. Kurtzman, 403 U.S. 602 (1971)]. Rule/Establishment Clause/Chapter 2 of the 1981 Education Consolidation and Improvement Act: An act which channels federal funds to local education agencies to acquire, for use in public and private schools, instructional and educational materials, including library and media materials and computer software and hardware, had a secular purpose and did not have the effect of advancing religion either by resulting in governmental indoctrination or by defining recipients by reference to religion, and therefore did not violate the First Amendment's Establishment Clause [Mitchell v. Helms, 530 U.S. 793 (2000)]. Rule/Establishment Clause/Aid to Special Needs Children at Parochial Schools: A public school may pay for an interpreter for a deaf child at a religious high school in a program that aids both public and private school disabled students without reference to religion [Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993)]. Rule/Establishment Clause/Parochial Teacher Salary: Grants to parochial schools for salaries of teachers of secular subjects have been held invalid, because of the risk of excessive government entanglement [Lemon v. Kurtzman, 403 U.S. 602 (1971). In contrast, grants to church-related colleges are permissible because their instructors are thought to be restrained by the various academic disciplines (e.g., sociology, biology, etc.), and their students are older, more mature, and less susceptible to indoctrination. Rule/Establishment Clause/Tax Deductions to Parochial Parents: A state permitting all parents, in computing their state income tax, to deduct expenses incurred in providing tuition, textbooks, and transportation, for their children in elementary and secondary schools, including parochial schools, was upheld [Mueller v. Allen, 463 U.S. 388 (1983)]. HOWEVER, giving tax deductions or tuition grants only to parents whose children attend parochial schools was held unconstitutional as violating the Establishment Clause [Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)]. Rule/Establishment Clause/Voucher Programs for Parochial Schools: A voucher program that allow parents to send their children to parochial religious schools with state aid instead of to failed public schools is allowed because the aid is neutral with respect to religion to a broad class of its citizens, the program is defined without reference to religion, and parents direct aid to religious schools as a result of their own independent and private choice [Zelman v. Simmons-Harris, 536 U.S. 639 (2002)]. Rule/Establishment Clause/Providing Public Services through Religious Institutions: Federal grants to church-affiliated hospitals for maintenance and care of indigent patients have been held valid [Bradfield v. Roberts, 175 U.S. 291 (1899)]. Free Exercise Clause Rule/Free Exercise Clause: A person's religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious beliefs. [Cantwell v. Connecticut, 310 U.S. 296, 1940]. Rule/Free Exercise Clause/License Plates: A state cannot require a person to carry a message on his license plate which offends his religious belief. [Woodley v. Maryland, 430 U.S. 705]. Rule/Public Employment/Free Exercise Clause: Public employment may not be conditioned on taking an oath based on religious belief. Rule/Religious Conduct and Gov't Regulation: Where an individual's conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is neutral in respect t religion and is of general applicability. In Employment Division v. Smith [494 U.S. 872 (1990)], the State of Oregon criminalized the possession of peyote, and no exemption was made for American Indians who use of peyote was for religious purposes. The S. Ct. upheld the law, and held that a neutral law of general applicability does not violate the Free Exercise Clause, even if it prohibits or punishes conduct engaged in as a religious observation or practice. HOWEVER, Where the government purposefully interferes with particular conduct because it is dedicated by religious beliefs, strict scrutiny analysis will be applied and the law will be held unconstitutional unless it can be justified through a compelling state interest served by narrowly tailored means. [Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)]. The Court held that the primary purpose of the ordinance was not to prevent cruelty to animals , but to abolish sacrificial rituals to of a particular religious sect. This purposeful interference with religious observance and practice was held unconstitutional. Rule/Free Exercise Clause/Polygamy: A state law outlawing polygamy was held unconstitutional [Reynolds v. United States, 98 U.S. 145, (1878)]. Rule/Free Exercise Clause/Military Personnel: The Court struck down a free exercise challenge by a Jewish Air Force doctor who violated uniform dress requirements by wearing a yarmulke while on duty [Goldman v. Weinberger 475 U.S. 503, (1986)]. Rule/Free Exercise Clause/Taxes The social security tax applied to an Amish employer was held constitutional even though his religious beliefs prohibited him from making payments and receiving benefits [United States v. Lee, 455 U.S. 252, (1982)]. Rule/Free Exercise Clause/Unemployment Compensation: A state cannot deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath [Sherbert v. Verner, 374 U.S. 398, (1963)]. Rule/Free Exercise Clause/School Attendance: The Court required that Amish children be exempt from state law requiring all children to attend high school [Wisconssin v. Yoder, 406 U.S. 205 (1972)]. Rule/Free Exercise Clause/Sunday Closing Laws: The Court upheld Sunday closing laws because they further the state interest in proving a common day of rest [Braunfield v. Brown, 366 U.S. 599 (1961). Rule/Free Exercise Clause/Gov't Scholarships to Religious Schools: A state-funded scholarship program for which devotional theology majors were ineligible did not suggest animus toward religion or impose more that a relatively minor burden on program participants [Locke v. Davey, 540 U.S. 714 (2004)]

The Nature of Judicial Review 1. Organization of the Courts in the Federal System 2. The United States Supreme Court

1. Organization of the Courts in the Federal System Rule/Source of Federal Judicial Power: Article III, Section 1 provides that the "judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as Congress may from time to time ordain and establish. Rule/Scope of Federal Power: Article III, Section 2 limits the jurisdiction of the federal courts to: (a) cases, in law and equity, arising under the U.S. Constitution, federal laws, and treaties; (b) cases affecting ambassadors, public ministers, and consuls; (c) cases of admiralty and maritime jurisdiction; (d) controversies to which the United States shall be a party; (e) controversies between two or more states; (f) cases between a state and citizens of another state; and (g) cases between citizens of different states (diversity of citizenship cases). Rule/11th Amendment/Governmental Immunity: The Eleventh Amendment prohibits citizens of one state from suing their own or another state on federal claims for money damages, in federal court or state court, without the state's consent. The Eleventh Amendment recognizes the states and their governmental immunity; it applies not only to diversity suits but to federal question cases as well. Rule/11th Amendment/Government Immunity Not Applicable to Subdivisions of a State: The Concept of governmental immunity, or sovereign immunity, means that the government may not be sued without it's consent. HOWEVER, subdivisions of a state (e.g. cities, towns, and counties) do not have immunity from suit under the Eleventh Amendment [Lincoln County v. Luning, 133 U.S. 529 (1890)]. Rule/11th Amendment/Government Immunity/Congress: Despite Congress's enumerated powers under Article I Section 8, the Eleventh Amendment nonetheless prohibits federal court adjudication of claims by private parties against the state [e.g., Congress could not use Article I to circumvent the limitations placed on federal jurisdiction and, therefore, could not allow a Native American tribe to sue a state in federal court, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)]. HOWEVER, pursuant to its enforcement powers under the post-Civil War amendments (Thirteenth, Fourteenth, and Fifteenth), Congress can authorize private suits by individuals to compensate for state violations of those amendments [Fitzpatrick v. Bitzer, 427 U.S. 445 (1979)]. Exceptions to the application of the Eleventh Amendment include: (a) suits against state officials for abusing their own power in enforcing an unconstitutional state statute [Ex parte Young, 209 U.S. 123 (1908)]. (b) federal suits brought by one state against another state, or suits brought by the federal government against a state; and (c) most suits for injunctions - e.g., a private citizen may sue to enjoin a state official from acting in violation of the plaintiff's federal Constitutional rights. [e.g., state workers alleging age discrimination under the federal Age Discrimination in Employment Act may not sue their employers (i.e., the state) using the federal statute as a cause of action, because Congress lacks the power to override the state's Eleventh Amendment immunity from federal lawsuits in the absence of a pattern of unconstitutional action by the states violative of the Fourteenth Amendment, Kimel v. Board of Regents, 528 U.S. 62 (2000)]. Rule/State's Waiver of Governmental Immunity: A state mat consent to suit in federal court if it clearly waives its Eleventh Amendment immunity and does so expressly and unequivocally (or by voluntarily invoking a federal court's jurisdiction). A state will not be held to have impliedly or constructively waved its immunity simply because Congress provides that a state will be subject to private suit if it engages in certain federally regulated conduct (such as infringing a federally granted patent) and the state voluntarily elects to engage in that conduct [College Expense Board, 527 U.S. 666 (1999)]. Generally, Congress may abrogate a state's immunity where: (a) the act asserts that it is abrogating the state's immunity; and (b) congress enacts the act under a grant of power that may abrogate the state's immunity. [e.g., probation officer owed money under federal law cannot sue for it in either federal or state court; states can infringe patents or copyrights and thus violate federal law, but cannot be sued in either federal or state court by private parties. Remember, however, that state officials can be sued for injunctive relief, but injured private plaintiffs have no damage remedy against state governments]. 2. Limitations on Jurisdiction of Federal Courts Rule/Case or Controversy: Article III, Section 2 limits the jurisdiction of federal courts to "cases" and "controversies." A case or controversy is a real and substantial dispute that touches the legal relations and parties having adverse interests and that can be resolved by a judicial decree of a conclusive character [Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937)]. (a) The Supreme Court will not give advisory opinions to either the president or Congress concerning the constitutionality of proposed action or legislation [state courts may be allowed to issue advisory opinions]; (b) the prohibition against advisory opinions does not preclude federal courts from granting declaratory judgments. A declaratory judgment is a decision in which the court is requested to determine the legality of the proposed conduct without awarding damages or injunctive relief. HOWEVER, the plaintiff must meet the case or controversy requirement as well as the RAMPS requirement. Ripeness, Abstention & Adequate State Grounds, Mootness, Political Question, Standing Rule/Mootness: If a controversy or matter has already been resolved, then the case will be dismissed as moot. An actual cases or controversy must exist at all stages of the litigation [Liner v. Jafco, Inc., 375 U.S. 301 (1964)]. (a) Although the principal issue in a lawsuit has been resolved, if a party still has an interest in resolving collateral (or lesser) matters, the case will not be dismissed [e.g., a case about wrongful termination is not moot even though the plaintiff had his employment restored if issues of back pay remain, (Powell v. McCormick, 395 U.S. 486 (1969)]; (b) the case will not be dismissed for mootness if the injury is "capable of repetition, yet evading review," meaning that it is a practical impossibility for there to be adjudication or appellate review before the claims of the plaintiff, or other individuals who are members of the class, become moot [e.g., a pregnant woman's suit challenging the constitutionality of a state abortion statute was held not to be moot even though she was no longer pregnant at the time the case reached the S. Ct. Pregnancy is "capable of repetition, yet evading review, for the plaintiff and for members of the class she represents [Roe v. Wade, 410 U.S. 113 (1973)]. Rule/Ripeness: Whereas mootness bars consideration of claims after they have been resolved, ripeness bars consideration of claims before they have fully developed. (a) Generally a court may not review or grant a declaratory judgment of a state law before it is enforced of when there is no real threat the statute will ever be enforced [Poe v. Ullman, 367 U.S. 497 (1961)]. [e.g., The Supreme Court dismissed a claim against the Army's data-gathering activities because there was no showing that the Army's surveillance system resulted in any specific present harm or threat of future harm to the complainants (Laird v. Tatum, 408 U.S. 1 (1972)); the S. Ct., refused to grant equitable relief because there was no evidence that the pattern of allegedly unconstitutional racial discrimination in the bail and sentencing practices in Cairo, Illinois court system threatened the plaintiffs, who were not in imminent danger of being prosecuted (O'Shea v. Littleton, 414 U.S. 488 (1974)); the S. Ct. did rule on the constitutionality of a statute prohibiting the teaching of evolution in public schools even though the statue had not been enforced [Epperson v. Arkansas, 393 U.S. 97 (1968))]. (b) HOWEVER, if the plaintiff can show, before enforcement of the law, that the law presents a specific or present harm or a threat of specific future and imminent harm, the court may grant a declaratory judgment [Abbot Laboratories v. Gardner, 387 U.S. 136 (1967)]. Rule/Standing: Article III requires a person litigating a constitutional question to show: (1) Injury-in-fact: the plaintiff must show a direct personal injury, actual or imminent, caused by the action he was challenging. Where the plaintiff does not suffer any injury or harm he does not have standing [Sierra Club v. Morton, 405 U.S. 727 (1972); (2) Causation (the injury was caused by the challenged action); and the injury must be caused by the violation of a duty affecting the plaintiff's rights arising under the constitution or federal law [Simon v. Easter Kentucky Welfare Rights Organization, 426 U.S. 26 (1976)]; and (3) Redressability: the plaintiff must show that he will benefit from the remedy sought in litigation Specialized Problems With Standing Rule/Standing/Federal Taxpayers: As a general rule, federal taxpayers do not have standing to challenge allegedly unconstitutional federal expenditures on the grounds that their injury is comparatively minute and indeterminative, and their interest is too remote [Massachusetts v. Mellon, 262 U.S. 447 (1923)]. HOWEVER, in 1968, the Supreme Court held that a federal taxpayer had standing to challenge federal expenditures to aid parochial schools where the taxpayer was challenging the expenditure of money by Congress under the taxing and spending power and the expenditures allegedly violated the Establishment Clause [Flast v. Cohen, 392 U.S. 83 (1968)]. The Flast principle has not been extended to other areas of government activity. Rule/Standing/Federal Taxpayers/Property Clause: Taxpayers did not have standing to challenge a transfer of valuable real estate, under the Property Clause to a Christian college from a local government [Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982)]. Rule/Standing/Senator's or Representative's service in the Armed Forces: Citizens did not have standing to challenge a senator's or representative's services in the Armed Forces Reserve as a violating Article I, Section 6, prohibiting a member of Congress from "holding any office under the United States [Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)]. Rule/Asserting the Rights of Third Parties: Under the traditional view, a litigant lacks standing to assert the rights of a third party not before the court [Tileson v. Ullman, 318 U.S. 44 (1943)]. UNLESS: (a) a special relationship exists between the claimant and third party because of the connection between the interests of the claimant and the constitutional rights of the third person [Singleton v. Wulff, 429 U.S. 106 (1976) (the Court acknowledged the right of a physician to raise the rights of his patients in challenging an abortion ruling because of the close relationship between the doctor and his patient, and also because the patient was unable to bring suit on her own behalf); Craig v. Boren, 429 U.S. 190 (1976) (a vendor of beer had standing to assert the rights of males under the age of 21 in a challenge to a law prohibiting the sale of beer to them; Craig v. Population Services International, 431 U.S. 678 (1977) (a seller of contraceptives had standing to assert the rights of potential purchasers against a law prohibiting the sale of such devices]; or (b) the third party is unable or finds its difficult to bring suit on his own behalf. Rule/Standing/Associations: An association has standing to assert the claims of its members, even if the association has not suffered any injury itself, if (a) the members would otherwise have standing to sue in their own right; (b) the interest asserted in germane to the association's purpose; and (c) neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit. Rule/Standing/Environmental Claims: The court ruled that the Sierra Club lacked standing because there was no allegation that any of the Sierra Club members ever had used the mineral valley; and thus, there was no direct injury[Sierra Club v. Morton, 405 U.S. 727 (1972)]. By Contrast, the court upheld the standing of a group of George Washington Law Students alleging that an administrative rate hike would decrease recycling, which would lead to more use of natural resources and increased pollution. The students maintained that their enjoyment of the forests, streams, and mountains in the Washington, D.C. area would be lessened as a result. The Court upheld the group's standing because the plaintiffs actually used the environmental area for hikes, biking, and other recreational purposes [United States vs. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973)]. Rule/Abstention: The federal court may abstain, or refuse to hear a particular case, when there are undecided issues of state law presented. The abstention doctrine permits the state court to resolve issues state law, thereby making a decision of the constitutional issue unnecessary. Thus, proper deference is paid to the state court system and harmonious federal-state relations are furthered [Railroad Commission v. Pullman, 312 U.S. 496 (1941)]. (a) The federal court may abstain if the meaning of a state law or regulation is unclear. In this situation, the state court might interpret the statute so as to avoid the constitutional issue [Harris County Commissioners Court v. Moore, 420 U.S. 77 (1975)]. (b) Where state criminal proceedings are pending, the federal court will abstain in a suit seeking an injunction against the state prosecution, absent a showing of bad-faith harassment on the part of the state prosecution [Younger v. Harris, 401 U.S. 37 (1971). This principle has been extended to cases (1) where state civil proceedings had commenced (seeking an injunction against operation of a state public nuisance statute used to close a pornography movie house (Huffman v. Pursue Ltd., 420 U.S. 592 (1975)); and (2) where civil contempt hearing had begun (Judice v. Vail, 430 U.S. 327 (1977)). Rule/Political Questions: Federal courts cannot hear cases involving political questions. A political question is a matter assigned to another branch by the constitution or incapable of a judicial answer. The Supreme Court set forth the following relevant factors to consider if the political question doctrine applies: (a) whether there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; (b) a lack of judicially discoverable and manageable standards for resolving it; (c) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (d) the impossibility of a court's undertaking independent resolution without expressing a lack of respect due coordinate branches of government; (e) an unusual need for questioning adherence to a political decision already made; and (f) the potential for embarrassment from multifarious pronouncements by various departments on one question. Rule/Political Question/Rule Origins: There are two principal factors related to the political question doctrine. First considerations (a), (d), (e), and (f) enumerated above are rooted in the separation of powers. On the other hand, considerations (b) and (c) recognize limitations of the judiciary in resolving certain types of controversies. Rule/Political Question/Subpoena of Presidential Documents: The ability of a grand jury to subpoena documents in possession of the president against a claim of executive privilege does not present a political question apart from a claim based on national security [United States v. Nixon, 418 U.S. 683 (1974)]. Rule/Other Areas of Political Questions: Other areas of political questions include decisions in regard to: (a) the impeachment process; (b) the amendment ratification process; (c) the president's power to unilaterally terminate a treaty; (d) foreign affairs; (e) guaranty clauses issues under Article IV [In which every state is guaranteed a republican form of government and protection from invasion]. (f) the house has unreviewable power to determine residency as well as age and citizenship, qualifications for its members and present a nonjusticiable political question [contrast with, Powell v. McCormack, where the house refused to seat him, after he had been elected, due to the fact that he had diverted funds from the house for his own personal use; the court held that the house did not have the authority to exclude him since he met all the requirements for membership expressly described in Article 1 Sec. 2 (age, citizenship, and residency)]. Rule/Political Questions/Gerrymandering: A claim that a state has redrawn its electoral districts in a racially discriminative manner is not a political question. HOWEVER, a claim that a state has redrawn electoral districts to benefit one political party is a political question and, therefore, is nonjusticiable. The Supreme Court has ruled that there are manageable judicial standards for deciding claims of race discrimination, but that there are no such standards for deciding when a political party has been unfairly advantages when electoral districts are redrawn.

Retroactive Legislation 1. The Contract Clause 2. Ex Post Facto Laws 3. Bill of Attainder

1. The Contract Clause Rule/Contract Clause: No state shall pass any law impairing the obligation of contracts [U.S. Const. art. I, Section 10]. The principal reason for the inclusion i.n the Constitution was to prevent state legislatures from passing retroactive laws impairing an existing contractual obligation. Therefore, the Contract Clause applies only to state legislation and not to state court decisions. Similarly, the Contract Clause does not apply to the federal government. Rule/Contract Clause/Legislature Modification Pursuant to State's Police Powers: A private contract can be modified by the legislature under its police powers when it is necessary to serve an important and legitimate public interest and the regulation is a reasonable and narrowly tailored means of promoting that interest. (1) Thus, during the Great Depression, a statute imposing a moratorium on mortgage foreclosure was upheld [Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934)]; (2) In determining whether a contract can be modified the court will consider: (a) the severity of the impairment; and (b) the importance of the public interest to be served [Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978)]. (c) New York and New Jersey violated the Contract Clause by permitting the Port Authority to use funds to subsidize public transportation in violation of a previous statutory covenant to private bondholders [United States Trust Co. v. New Jersey, 431 U.S. 1 (1977)]; (d) The S. Ct. recognized the validity of police power limitations on the Contract Clause and invalidated state pension reform legislation which increased the obligation of companies under preexisting pension plans [Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978)]. 2. Ex Post Facto Laws Rule/Ex Post Facto Laws: There are two ex post facto clauses in the Constitution that prevent both the state and federal governments from passing retroactive criminal laws. Article I, Sec. 9, clause 3 provides: "No ex post facto law shall be passed," and Article I, Section 10, clause 1 provides: "No state shall pass any ex post facto law. In general, a statute retroactively alters the criminal law if it: (a) makes criminal an act that was not a crime when committed; (b) prescribes greater punishment for a crime after its commission; (c) decreases the amount of evidence required for conviction; or (d) extends the statute of limitations for a crime as to which the previously applicable statue of limitations has already expired. 3. Bill of Attainder Rule/Bill of Attainder: Article I, Sec. 9, Clause 3 states: No bill of attainder shall be passed; and Article I, Sec. 10, Clause 1 provides: No state shall pass any Bill of Attainder. These two provisions prevent both the federal government and state legislatures from passing bill of attainders. A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for pas conduct. (a) The S. Ct. held that a provision in the Landrum-Griffin Act making it a crime for a member of the Communist Party to act as an officer of a labor union was the equivalent of legislative punishment, and hence a bill of attainder [United States v. Brown, 381 U.S. 437 (1965)]. (b) HOWEVER, the court later held legislation authorizing the government control of various presidential papers and tape recordings did not constitute a bill of attainder, because the act was non-punitive [Nixon v. Administrator of General Services, 433 U.S. 425 (1977)].

Separation of Powers 2. Executive Power

2. Executive Power Rule/Power to Execute Laws: The executive power shall be vested in a President of the United States. This provision confers broad authority in the president to execute laws of the United States. There are a few enumerated powers expressly granted to the president under Article II. Many of the president's domestic and foreign powers are implied. The Supreme Court has held that the president has no power to make laws, but has the power to execute them. Rule/Appointment Power: Article II gives the president power, "with the Advice and Consent of the Senate," to nominate and appoint all "Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for." Rule/Presidential Appointment Power and Congress' Appointment Powers: the presidential appointment power should be construed as a limitation on the congressional appointment power. Although Congress can appoint officials to its legislative committees, it cannot appoint members to any agency or commission with administrative powers. An attempt to vest the power to appoint members of the Federal Elections Commission in the speaker of the House of Representatives was held unconstitutional [Buckley v. Valeo, 424 U.S. 1 (1976)]. The president, therefore, has exclusive power to nominate high-level officials such as cabinet members, ambassadors, and heads of agencies. The Senate, however, has the power to confirm or reject the president's nominees for such high-level appointments. Congress can delegate the appointment of inferior officers (including special prosecutors) to: (1) the president; (2) the judiciary; or (3) heads of departments. Rule/Removal Power: Although the U.S. Constitution is silent with respect to removal power. It is generally agreed that the president may remove any executive appointee (e.g., an ambassador or cabinet member) without cause. HOWEVER, the president must have cause (i.e., good reasoning) to remove executive officers having fixed terms and officers performing judicial or quasi-judicial functions (e.g., a member of the Federal Trade Commission). Congress has no power to summarily remove an executive officer [Bowsher v. Synar, 478 U.S. 714 (1986)]. Federal judges cannot be removed by Congress or the president during "good behavior"; formal proceedings are required for removal. Rule/Veto Power: Once Congress has passed legislation and present it to the president, the president has 10 days in which to act upon it. Unless he vetoes it within the 10-day period. The proposed legislation will become law [U.S. Const. art. 1. Sec. 7]. The president can pocket veto a bill passed within 10 days of the end congressional term by not signing it. Congress has the power to override a veto by a two-thirds vote of both the Senate (67 votes) and the House of Representatives (290 votes). A line-item veto, which gives the President the power to cancel particular provisions of new federal legislation, has been held unconstitutional as a grant of power to the president to amend a statute. Amendments are valid only when Congress enacts a new statute followed by a presidential signature [Clinton v. City of New York, 524 U.S. 417 (1998)]. Rule/Congressional Legislation and Presidential Power: (a) The president may exercise only those powers expressly or impliedly granted by the Constitution or an act of Congress. Moreover, if Congress validly exercises one of its powers an overrides the president, then Congress prevails over the President [e.g., the president may not validly use his power as commander-in-chief to seize a factory in order to prevent a strike during wartime if Congress oppose such action [Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)]. (b) Congress can enact legislation that delegates rulemaking power to an executive administrative agency in some designated subject area ( such as securities law, labor law, environmental law, and so on), creating a huge exception to the general rule that the executive branch may not make law. Rule/Pardon Power: The president may "grant reprieves and pardons for offenses against the United States, except in cases of impeachment [U.S. Const. art. II Sec. 2]. Rule/Executive Privilege: (a) The president has an absolute privilege to refuse to disclose information relating to military, diplomatic, or sensitive national security secrets. (b) Other confidential communications between the president and his advisors are presumptively privileged. The presumption is overcome when confidential communications are subpoenaed as evidence in a criminal trial [United States v. Nixon, 418 U.S. 683 (1974)]. Rule/Obligation to Report: The president shall from time to time give to the Congress information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient. This obligation has evolved into the annual "State of the Union: address given by the president [U.S. Const. art. II, Sec. 3]. Rule/Commander-in-Chief: The president shall be the commander-in-chief of the Army and Navy of the United States, and of the militia of the several states when called into the actual service of the United States by Congress [U.S. Const. art. II Sec. 2]. Rule/Military Powers: (a) The president has the power to deploy military forces without a formal declaration of war in response to an attack upon the United States (as determined by the Prize cases) [Brig Army Warwick, 67 U.S. 635 (1863)]. (b) He additionally has the power to seize private property during wartime unless Congress denies him that power [United States v. Pewee Coal Co., 341 U.S. 114 (1951)]; (c) HOWEVER, the president does not have the power to declare war. Rule/Commander-in-Chief/Military Powers/Unsettled Areas: Clearly, the president may commit troops to repeal a sudden attack on the United States. HOWEVER, certain issues remain unclear such as: (1) whether the president may commit forces without congressional approval to aid a U.S. ally under attack (although provisions in certain defense treaties would authorize such intervention); and (2) whether the president may order a preemptive strike in anticipation of an enemy attack. Rule/International Affairs/Treaty Power: The president has the power to make treaties with foreign nations by and with the advice and consent of the Senate. Treaties require consent of two-thirds of the Senate before they are enacted [U.S. Const. art. II, Sec. 2, Cl. 2]. (a) A treaty is self-executing when it takes effect without the necessity of any further action by Congress beyond consent or ratification [Missouri v. Holland, 252 U.S. 416 (1920)]. (b) A treaty is not self-executing when it requires Congress (or state legislatures) to pass legislation to implement its provisions - i.e., requiring a change in either federal or state law which would enable fulfillment of treaty obligations. (2) In accordance with the Supremacy Clause, treaties are the supreme law of the land; and the judges of every state shall be bound thereby, any thing in the Constitution of laws of any State to contrary notwithstanding [U.S. Const. art. VI, cl. 2]. (a) Self-executing treaties are considered the supreme law of the land, whereas treaties which are not self-executing become part of the supreme law of the land, and thus supersedes existing federal law and state statutes, only when further legislative action is taken by Congress. Rule/Treaty Power/Supremacy Clause: Treaties take precedence over any conflicting state law regardless of whether a treaty precedes or follows the enactment of the state law. HOWEVER, when a treaty and federal statute conflict on the issue in question, time determine the controlling authority - the last in time will prevail [Neilsen v. Johnson, 279 U.S. 47 (1929)]. Rule/Executive Agreements: The president has the power to enter into executive agreements and compacts with foreign nations. Such agreements are valid and prevail over inconsistent state law. Executive agreements are the sole responsibility of the president and need not be ratified by Congress. Executive agreements do not prevail over federal statutes [United States v. Belmont, 301 U.S. 324 (1937)].

First Amendment Freedoms 2. Freedom of Expression. A. Exceptions to Freedom of Speech B. Conduct Regulation C. Government as a Speaker D. Unprotected Speech E. Time, Place, Manner F. Freedom of Association G. Public Employment H. Prior Restraint I. Overbreadth J. Vagueness K. Press L. Bar Admission

2. Freedom of Expression Rule/First Amendment/Fourteenth Amendment: The First Amendment provides: "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (a) the First Amendment was held applicable to the states through the Due Process Clause of the Fourteenth Amendment [Gitlow v. New York, 268 U.S.652 (1975)]. Rule/Censorship: The government may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech (even if that speech is offensive), with some exceptions: A. Exceptions to Freedom of Speech Rule/Strict Scrutiny: The regulation of speech is allowable if it passes strict scrutiny. Rule/Political Speech Outside a Foreign Embassy: A provision of the District of Columbia Code prohibiting signs within 500 feet of a foreign embassy that tended to bring the foreign embassy that tended to bring the foreign government into "public odium" or "public disrepute" was held unconstitutional as a content-based regulation of political speech that could not be justified by proof of a compelling governmental interest served by narrowly tailored means [Boos v. Barry, 485 U.S. 312 (1988)]. Rule/Political Speech/Corporate General Treasury Funds: Congress banned corporations and unions from using their general treasury funds to advocate the election or defeat of a candidate within 30 days of the election. Citizens United wanted to run a television show that was critical of presidential candidate, Hillary Clinton, shortly before the primary election. The Court ruled that corporate spending on speech merits the same First Amendment protection as speech by natural persons. Hence, Congress could not censor such corporate speech [Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010)]. HOWEVER, the court has held that a state ban on the use of payroll deductions to fund political campaigns is not an abridgement of speech. The unions may engage in political speech, but are banned from enlisting the state's support through payroll deductions [Ysursa v. Pocatello Education Associaition, 353 U.S. 533 (2009)]. Rule/Political Speech/Public Disclosure of Petitioners for a Ballot Referendum: In Washington State, citizens may put a referendum on the ballot if they can get a certain number of signatures on a petition. Washington publicly disclosed the signers of a petition seeking a referendum on the rights of same-sex partners. The Court ruled that the First Amendment Rights of the signers were not violated, at least in the absence of showing that the disclosure caused specific harm to the signers. The disclosure requirement served the goal of maintaining the integrity of the electoral process [Doe v. Reed, 130 S. Ct. 2811 (2010)]. B. Conduct Regulation Rule/Conduct Regulation: A law which regulates but creates an incidental burden on speech is allowable if: (a) the regulation furthers an important or substantial interest that is unrelated to the suppression of free expression; (b) the incidental restriction on speech is no greater than is essential to the furtherance of that interest [United States v. Obrien, 391 U.S. 367 (1968)]. Rule/Conduct Regulation/High School Students: Students wearing black armbands in protest of the Vietnam War was held to be protected speech [Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)]. Rule/Conduct Regulation/Flag Burning: A Texas prohibition against desecrating an American flag was held unconstitutional as applied to an individual who burned a flag as a form of political expression. Strict scrutiny was applied because the Texas statute was intended to control expression [Texas v. Johnson, 491 U.S. 397 (1989)]. Rule/Conduct Regulation/Pledge of Allegiance: Requiring students to salute the American flag and say the pledge of allegiance was held unconstitutional [West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)]. Rule/Conduct Regulation/Flag Protection Act: A federal statute, the Flag Protection Act of 1989, was subjected to strict scrutiny and held unconstitutional was a content-based regulation of political speech [United States v. Eichman, 496 U.S. 310 (1990)]. Rule/Conduct Regulation/Cross-burning: Virginia's prohibition of cross-burning with the intent to intimidate was not unconstitutional since it banned conduct rather than expression. While cross-burning could constitute expression, such expressive conduct was not proscribed unless it was done with the intent to intimidate, and targeting cross-burning was reasonable because burning a cross was historically a particularly virulent form of intimidation. A plurality of the S. Ct., however, found the law to be a facially unconstitutional restraint on speech, to the extent it had the effect that any cross-burning could, prima facie, be sufficient evidence from which the jury could infer the required intent to intimidate [Virginia v. Black, 538 U.S. 343 (2003)]. Rule/Conduct Regulation/Passing Literature on Public Streets: An ordinance to keep the streets clean was held as not permissible to justify prohibiting people from handing out literature to others willing to receive it [Schneider v. State of New Jersey, 308 U.S. 147 (1939)]. C. Government as a Speaker Rule: Where the speaker is the government rather than a private actor, the government may discriminate based on the content of the speech: (a) A city erects several permanent monuments in a public park. Some of the monuments were donated by private organizations. A religious organization asks the city to erect a monument containing the Seven Aphorisms of Summum. The city refuses. The organization sues the city, alleging the violation of the organization's right of free speech. The S. Ct. held that there was no violation of the First Amendment. The permanent monuments constituted free speech by the government, even if the monuments were donated by private organizations. When the government speaks, it may favor some views and disfavor others [Pleasant Grove City v. Summum, 555 U.S. 460 (2009)]. (b) The Court held that the state of Texas was free to reject specialty license plates bearing the Confederate battle flag [Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S._(2015), Docket No. 14-144]. (c) if private individuals or organizations engage in direct communication in a public park (for example, making speeches or distributing leaflets, as opposed to donating permanent monuments), then, of course, the government may not discriminate among the speakers based on the content of their message, since the communication is by private actors and not by the government. (d) Pursuant to the First Amendment, a city must allow the KKK to temporarily erect a cross on a public park when other groups have been permitted to temporarily erect installations. Temporary installations by private organizations constitute private speech, while permanent installations constitute government speech even if donated by private organizations. D. Unprotected Speech Rule/Unprotected Speech: (1) A regulation which relates to unprotected speech is permissible. (2) Unprotected Speech includes: (a) Speech that advocates violence or unlawful action: (1) the constitutional guarantees of free speech do not permit state regulation of the advocacy of the use of force or of violation of the law, "except where such advocacy is directed at inciting or producing imminent lawless action and is likely to incite or produce such action [Bradenburg v. Ohio, 395 U.S. 444 (1969)] [A Virginia statute which stated, "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons," was found to be unconstitutional. The Court held that this provision was unconstitutional because of its indiscriminate coverage. However, it rules that a state may ban cross burning carried out with an intent to intimidate. The state must prove the intent to intimidate, Virginia v. Black, 538 U.S. 343 (2003)]. (b) Fighting words: (1) Words likely to incite an ordinary citizen to acts of immediate physical retaliation may be punished [Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); (2) To fall within this category, the speech must be more than annoying or offensive; there must be a genuine likelihood of imminent violence by a hostile audience; (3) fighting words statutes are subject to facial invalidity if the conduct proscribed is vague (e.g., a law prohibiting opprobrious words) or overbroad; (4) Fighting words statutes designed to punish certain viewpoints are unconstitutional [R.A.V. v. St. Paul, 505 U.S. 377 (1992)]. (c) Hostile audience speech: speech which elicits an immediate violent response against the speaker by an audience may be grounds for prosecution. The police, however, must make reasonable efforts to protect the speaker, to guard against heckler's veto of unpopular speech. (d) Obscene speech: (1) For speech to be considered obscene, the following three-part test must be satisfied [Miller v. California, 413 U.S. 15 (1975) (a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (a national standard is not used); (i) the manner in which allegedly obscene materials are advertised and sold may be probative of their prurient appeal [Ginzburg v. United States, 383 U.S. 463 (1966)]. (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value ( a national standard is used to determine this value [Pope v. Illinois, 481 U.S. 497 (1987)]. (2) Child pornography is unprotected speech. It may be regulated even without satisfying the Miller Test because of the state's compelling interest in protecting minor children: (a) The sale and distribution of visual depictions of sexual conduct involving children may be prohibited [New York v. Ferber, 456 U.S. 942 (1982)]; (b) A state may criminalize the private possession of child pornography in one's home [Osborne v. Ohio, 495 U.S. 103 (1990)]; (c) Recently, the S. Ct. held that a statute which outlawed not only actual child pornography but also virtual child pornography (in which no real children were depicted) was overly broad and violated the First Amendment [Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)]; (i) HOWEVER, in a follow-up case, the Court upheld a congressional statute which punished those who solicited or distributed pornography while believing it depicted children, even if in fact it did not [United States v. Williams, 553 U.S. 285 (2008)]. (e) defamatory speech: (1) Constitutional restrictions apply to defamatory speech where the plaintiff is either a public official or a public figure, or where the defamatory statement involves a matter of public concern; (2) when the plaintiff is a private person and the subject of the statement is a matter of purely private concern, such as the operations of a credit reporting agency, the plaintiff need not prove actual malice or negligence, and may recover according to common law defamation principles [Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)]; (3) When the plaintiff is a private person and the subject of the statement is a matter of public concern, the plaintiff need not prove actual malice, but must prove negligence about the truth of falsity of the statement; (4) When the plaintiff is a public official or public figure, the plaintiff must prove the state law requirements of defamation plus actual malice, defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement. This rule holds whether the allegedly defamation is a matter of public or private concern [New York Times v. Sullivan, 376 U.S. 254 (1964)]; (5) The S. Ct. held that a private plaintiff suing a media defendant for false-light invasion of privacy concerning a matter of public interest must prove actual malice [Time, Inc. v. Hill, 385 U.S. 374 (1967)] (a) Note that this standard is higher than in cases where a private plaintiff sues for defamation over matters of public interest; in the latter cases, the plaintiff need only prove negligence; (b) In addition, the Court said that a newspaper or broadcaster cannot be held liable for publishing truthful information obtained from the public record [Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975)]. (6) Pure Opinion may be actionable if it reasonably implies a false and defamatory fact [Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)]. Rule/Unprotected Speech/Commercial Illegal Activities: A state may prohibit commercial advertising of matters that are illegal (e.g., prostitution) or advertising that is untruthful, misleading, or deceptive [Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973)]. Rule/Unprotected Speech/Gov't Regulation on Commercial Speech: Commercial speech is protected by the First Amendment if it is not false or deceptive and does not relate to unlawful activity. If commercial speech satisfies these requirements, government regulation of the speech must satisfy the three-part test set forth in Central Hudson Gas v. Public Service Commission [447 U.S. 557 (1980)). The regulation must: (a) serve a substantial government interest; (b) directly advance the substantial government interest; and (c) not be more extensive than is necessary to serve that interest. Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/ Drug Prices: A state cannot place an absolute ban on the advertisement of drug prices [Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 (1976)] Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/Unsolicited Advertisements: A federal law making it a crime to send unsolicited advertisements for contraceptive devices was held unconstitutional [Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)]. Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/Lawyers: A state cannot prohibit attorneys from advertising routine legal services at stated fees [Bates v. State Bar of Arizona, 433 U.S. 530 (1977) (a) similarly, a state supreme court rule prohibiting an attorney from mailing new office opening announcements to person other than lawyers, clients, friends, or relatives was held to be unconstitutional [In re R.M.J., 455 U.S. 191 (1982)]. A state may discipline lawyers for in-person solicitation of clients for personal gain because of the potential for overreaching [Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)]. Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/Doctors: A state can prevent doctors from claiming to be "board certified" in a medical specialty unless the certifying organization meets certain state standards because the commercial speech doctrine does not protect fraudulent speech, and because such a statute reasonably advances the state's interest in protecting the public [American Academy of Pain Management v. Joseph, 353 F.3d 2020 (9th Cir. 2004). Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/Billboards: It is within the state's police power to prohibit billboards carrying commercial advertising. It is unclear, however, whether a total ban on billboards would be upheld [Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)]. Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/Newsracks: A city ban on newsracks placed on sidewalks to distribute commercial publications (while allowing newsracks to sell newspapers) was held invalid, because there was no reasonable fit between the type of publication being regulated and the state interest in reducing litter and promoting aesthetics [Cincinnati v. Discovery Network, Inc. 507 U.S. 410 (1993)]. Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/Harmful Products: Clearly advertising of unlawful products can be prohibited. HOWEVER, as to advertising of harmful products, yet lawful, products-i.e., "vice advertising," such as advertising for cigarettes, liquor, and gambling-it seems unlikely that the government can completely ban truthful advertising. (a) The S. Ct. held that a ban prohibiting all advertisement of liquor prices except for price tags displayed on the merchandise, enacted in order to protect the public and decrease alcohol consumption by discouraging price wars, was held unconstitutional [44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)]; (b) The Twenty-First Amendment, which allows the states to regulate liquor and liquor establishments within the state's borders, may not be used as a constitutional basis to override the protection on commercial speech afforded by the First Amendment; (c) A federal ban prohibiting beer bottle label from displaying alcoholic content was held unconstitutional as a violation of the brewer's free speech rights. Because the law applied only to labels, not to advertising, and only to beer, not to wine and spirits, it did not directly advance the government's interest in preventing "strength wars" [Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)]. Rule/Unprotected Speech/Gov't Regulation on Commercial Speech/Sexual Speech: Regulation of sexual speech must serve a substantial government interest and leave open reasonable alternative channels. (a) A ban on public nudity, including nude dancing in adult entertainment establishments, was held constitutional, with a plurality opinion focused on the need to protect the important government interest in social order and morality [Barnes v. Glen Theaters, Inc., 501 U.S. 1030 (1991)]; (b) A majority opinion of the S. Ct. held that a similar ban on nude dancing was content-neutral and constitutional because its purpose was to deal with the secondary effects of establishments where there is nude dancing, such as prostitution, and other forms of criminal activity [City of Erie v. PAP's A.M., 529 U.S. 277 (2000)]. E. Time, Place, Manner Rule/Time, Place, Manner/Test: (1) Reasonable regulation of the time, place, or manner of speech is allowed. (2) The government may place reasonable restraints on the time, place, and manner of the speech in public areas, such as streets, sidewalks, and parks-places historically associated with expressive conduct (e.g., picketing, leafleting, and broadcasting). The focus is not on the content or message of the speech, but rather its conduct or method. (a) A three part test is used to determine the constitutionality of the time, place, manner regulations of speech and assembly in the public places. The regulation must: (1) be content-neutral as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others); (2) be narrowly tailored to serve a significant (important) government interest; and (3) leave alternative channels for communication open [This test is very much like the test for intermediate scrutiny under equal protection]. Rule/Time, Place, Manner/Door-to Door Solicitation: The Court has held that a complete ban on door-to-door solicitation is unnecessary, because a homeowner can protect his privacy by posting a "No Solicitation" sign [Martin v. Struthers, 319 U.S. 141 (1943)]. An ordinance requiring door-to-door solicitors, or canvassers to, identify themselves to local authorities was upheld in the interests of crime prevention [Hynes v. Mayor of Oradell, 425 U.S. 610 (1976)]. Rule/Time, Place, Manner/Religious Canvassers: A city may not require person canvassing door to door to register with the mayor's office and receive a permit where the canvassing consists of religious proselytizing (such as that done by Jehovah's Witnesses), anonymous political speech or the distribution of handbills [Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002)]. Rule/Time, Place, Manner/Charitable Solicitations: Charitable applications for funds in residential neighborhoods are generally protected [Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980)]. Rule/Time, Place, Manner/Face-to-face Solicitation of Funds @ Airport Terminal: which is a non-public forum, may be prohibited, but a total ban on distribution of literature may not be [International Society for Krishna v. Lee, 505 U.S. 672 (1992)]. Rule/Time, Place, Manner/Mail Solicitation: The S. Ct. has upheld the constitutionality of a federal law that permits the post office, upon a householder's request to order a mailer to stop all future mailings to that addressee [Rowan v. United States Post Office, 397 U.S. 728 (1970)]. Rule/Time, Place, Manner/Non-Public Forums: Speech related activities at non-public forums, such as military bases, jails, government workplaces, and mailboxes, can be regulated by reasonable time, place, and manner regulations. The test used by the Court requires a government regulation to be: (a) viewpoint-neutral; and (b) reasonably related to a legitimate government interest. Rule/Time, Place, Manner/Non-Public Forums/Jails: A state may prohibit demonstrations on jailhouse grounds [Adderly v. Florida, 385 U.S. 39 (1966)]. Rule/Time, Place, Manner/Non-Public Forums/Military Bases: may be closed to political speeches and distribution of leaflets [Greer v. Spock, 424 U.S. 828 (1976)]. Rule/Time, Place, Manner/Non-Public Forums/City Buses: A city may sell commercial advertisement on city buses but refuse to sell such space for political advertising [Lehman v. Shaker Heights, 418 U.S. 298 (1974)]. Rule/Time, Place, Manner/Non-Public Forums/Public Schools: A public school may not deny use of its facilities to religious groups if other public and private groups are allowed similar access [Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 672 (1992)]. Rule/Time, Place, Manner/Non-Public Forums/Private Shopping Center: The owner of a private shopping center is not required by the Constitution to allow access for purposes of picketing and/or leafleting [Hudgens v. NLRB, 424 U.S. 507 (1976). HOWEVER, a state's constitution F. Freedom of association Rule/Freedom of Association/Non-Profits and Labor Unions: Under the freedom to associate the court has struck down laws that prevented the NAACP from assisting individuals and that prevented labor unions from assisting its members in in retaining lawyers [NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964)]. Rule/Freedom of Association/Private Organizations Disallowing Homosexual Participation: It is unconstitutional for the government to order the Boy Scouts of America to allow homosexuals to participate in the organization. The organization's view that homosexual conduct is inconsistent with the value it sought in youth members fall within the First Amendment right of expressive association [Boy Scouts of America v. Dale, 530 U.S. 640 (2001)]. Rule/Freedom of Association/Student Speech at a School Assembly: The S. Ct. refused to extend First Amendment protection to a high school student's lewd and offensive campaign speech delivered at a school assembly [Bethel School District No. 403 v. Fraser, 478 U.S. 675 (19(d) Freedom of Association Rule: There is a close nexus between freedom of speech and freedom of association. The S. Ct. has acknowledged that state action which may curtail (or have the affect of curtailing) the freedom to associate is subject to the closest scrutiny. G. Public Employment Rule: Generally, an individual cannot be denied public employment based upon membership in a political organization unless the position is a high level policy-making position [Keyishian v. Board of Regents, 385 U.S. 589 (1967)]. (1). The court invalidated political patronage dismissal by the Democratic Sheriff of Cook County [Elrod v. Burns, 427 U.S. 347, (1976)]; and (2) The court held that party affiliation is not an appropriate requirement for the position of public defender [Brand v. Finkel, 445 U.S. 507 (1980). Rule: An individual may be deprived of public employment for political association if [Scales v. United States, 367 U.S. 203 (1961)]: (1) he is an active member of a subversive organization; (2) such membership is with knowledge of the illegal aims of the organization; and (3) he has a specific intent to further those illegal ends (e.g., violent overthrow of the government.) Rule/Loyalty Oath Qualifications: in the past, the court has chosen to deal with loyalty oath qualifications under the vagueness and over-breath doctrines. Rule/Affidavit Association for Teachers: [Shelton v. Tucker, 364 U.S. 479, (1960)] An AK statute requiring teachers to file an affidavit listing every organization to which they have belonged or regularly contributed within the preceding five years was invalidated as overbroad. Rule/Oath for Public Employees To Not Support the Communist Party: E.g., [Cramp v. Board of Public Instruction, 368 U.S. 278 (1961)], the Court invalidated a Florida statute requiring public employee to swear to not support the communist party as vague. Rule/Public Employee Oaths to Support the Constitution: E.g., [Connell v. Higginbotham, 403 U.S. 207 (1971)], An oath that public employees will support the constitution of the U.S. and will oppose the overthrow of the government of the US by force, violence, or by an illegal or unconstitutional means was held valid in part; the portion of the oath requiring the employees to swear that they would support the Constitution was held constitutionally valid. However, the part of the oath requiring them to swear that they do not believe in the violent overthrow of the government was held invalid as proving for the employee dismissal without inquiry or hearing as required by due process. H. Prior Restraint Rule/Prior Restraint: As a general rule, the government cannot suppress or restrain speech in advance of its publication or its utterance. There is a strong presumption against the constitutional validity of any system of prior restraint of expression. (1) The S. Ct. refused to permit the government to enjoin the publication of the pentagon papers [New York Times v. United States, 403 U.S. 713 (1971)[; (2) Confiscation by the post office of mailed materials determined by the postmaster general to be "obscene" was held invalid [Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)]; (3) A restraining order issued by a trial judge to limit media reporting of a criminal trial was held unconstitutional [Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)]. Rule/Prior Restraint/Exceptions to Prior Restraint: There are some exceptional cases in which prior restraints are allowed, including: (1) A government agency can require prepublication review of writings related to employment of past or present employees where such review is necessary to protect national security [Snapp v. United States, 444 U.S. 507 (1980)]; (2) classified military information; and (3) any case involving a search and seizure is governed by the Fourth Amendment: (a) thus, any "large scale" seizure of allegedly obscene materials must be preceded by a full adversary hearing, and judicial determination of obscenity; (b) HOWEVER, the seizure of a single book or film to preserve it as evidence in a criminal proceeding need only be made pursuant to a warrant based on a determination of probable cause by a neutral magistrate [Heller v. New York, 413 U.S.483 (1973)]. Rule/Prior Restraint/Exceptions to Prior Restraint/Pre-Trial Publicity: The S. Ct. required trial judges to consider three factors in determining if a restraining order against pre-trial publicity is appropriate: (1) the nature and extent of the pre-trial publicity; (2) the availability of other measures to mitigate the effects of pre-trial publicity; and (3) the likely effectiveness of the restraining order. Rule/Prior Restraint/Exceptions to Prior Restraint/Censorship or Licensing of Motion Pictures Prior to their Exhibition: The Court has held that statutes requiring films to be submitted to a Board of Censors before showing them are constitutional if the following requirements are met [Freedom v. Maryland, 360 U.S. 51 (1965)]: (1) the standards for the denial of a license are narrowly drawn and reasonable; (2) when a license is denied, the censor promptly seeks an injunction [Teitel Films v. Cusack, 390 U.S. 139 (1968)]; (3) the burden of proving tat the material is "obscene," or otherwise unprotected, is on the censor; and (4) a prompt judicial determination is provided. Rule/Prior Restraint/Exceptions to Prior Restraint/Licenses for Parades, Demonstrations, or Rallies: A method the government frequently uses for requiring the time, place, and manner of speech is to require a license or permit for such activities such as a parade, demonstration or rally; such a licensing statute is valid provided that it: (a) is content-neutral as applied (i.e., for protected speech, the message of the petitioners cannot be considered in granting or denying the permit); and (b) does not give licensing officials "unfettered discretion" to determine who may receive the permit [A parade permit that required applicants to pay up to $1,000 per day to cover anticipated costs of police security was held void on its face as a prior restraint. Also, as applied to a white supremacy group, the ordinance was not content-neutral, because unpopular speech is met with greater hostility, thus requiring police protection [Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)]. (2) Where a statute is facially void (i.e., it gives the licensing officials unrestricted discretion), a speaker need not even apply for a permit. In this case, one may exercise his First Amendment rights on the public property without a permit [Staub v. Baxley, 365 U.S. 313 (1958)]; (3) On the other hand, if a statute is valid on its face (i.e., it contains narrowly defined standards as to time, place, manner, and duration), then the applicant must seek a permit. If the permit is denied, even arbitrarily, the applicant must appeal the adverse ruling to a superior administrative or judicial body [Poulos v. New Hampshire, 345 U.S. 395 (1953)]. Rule/Prior Restraint/Exceptions to Prior Restraint/Enjoined Speaker: As a general rule, if one is enjoined from speaking, he must either obey the injunction or appeal it, unless the licensing statute is facially void or the timing is such that an appeal would effectively frustrate the exercise of his rights [Walker v. City of Birmingham, 388 U.S. 307 (1967)]. I. Overbreadth Rule/Overbreadth: When a state has the power to regulate an area dealing with free speech, it must not do so my means which sweep unnecessarily broadly and thereby invade the area of protected freedom [NAACP v. Alabama, 377 U.S. 288 (1964)]. Thus the wording of a statute must be narrow and specific. and not overly broad so as to have a "chilling effect" upon protected speech. (1) The S. Ct. has held that the Overbreadth of a statute must not only be real, but substantial as well [Broadrick v. Oklahoma, 413 U.S. 601 (1973)]. (2) The S. Ct. further explained that there must be a realistic danger that the statue itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds [Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)]. (E.g., An ordinance making it unlawful to curse or revile or to use obscene or opprobrious language toward or with reference to a police officer performing his duties was held invalid because the ordinance effectively punished all vulgar and offensive speech even though some of this speech may be protected by the First Amendment [Lewis v. City of New Orleans, 415 U.S. 130 (1974)]; An ordinance prohibiting speech that "stirs the public to anger, invite disputes, brings about condition of unrest, or creates a disturbance was held to be overbroad and unconstitutional [Terminiello v. City of Chicago, 337 U.S. 1 (1949)]. J. Vagueness Rule/Vagueness: The Court admonished that governmental regulations must be drawn with narrow specificity. The following statutes have been ruled void for vagueness under due process inquiries: (1) a statute making it a crime to publicly mutilate, trample upon, deface or treat contemporaneously the flag of the United States [Smith v. Goguen, 415 U.S. 566 (1974)]; (2) a municipal vagrancy ordinance defining vagrants to include rogues and vagabonds, lewd, wanton, and lascivious persons and persons wandering or straying around from place to place without any lawful purpose or objective [Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)]; and (3) a city ordinance that defined loitering as to remain in any one place with no apparent purpose and gave police officers absolute discretion to issue dispersal orders to groups of two or more persons seen loitering in a public place if the officer reasonably believed that one of them was a criminal street gang member, and which made it a criminal offense to disobey such order [City of Chicago v. Morales, 527 U.S. 41 (1999)' K. Press Rule/Press/Rights of the Press: The press has no greater freedom to speak than any ordinary of the general public does. Also, the press has no special right of access to governmental information. Rule/Press/Criminal Trials: The First Amendment guarantees both the public and the press a right to attend criminal trials. HOWEVER, the right is not absolute and may be outweighed where the judge finds an overreaching interest that cannot be accommodated by less restrictive means [Richmond Newspapers v. Virginia, 448 U.S. 555 (1980)]. Rule/Press/Gag Order: A pre-trial order prohibiting the press from publishing certain types of information will almost never be held constitutional because the trial judge has other alternatives at his disposal (e.g., a change of venue, postponement of the trial, careful voir dire (questioning of jurors), or restricting statements of lawyers, police, and witnesses) [Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)]. Rule/Press/Grand Jury Testimony: A newsperson has no First Amendment right to refuse to testify before a grand jury [Branzburg v. Hayes, 408 U.S. 665 (1972)] Rule/Press/Radio and Television Broadcasting: In general, radio and television broadcasting can be more closely regulated than the press, due to the limited number of airways available. A radio broadcast of patently offensive sexual and excretory speech (even if not obscene under the miller test) can be sanctioned to protect the privacy interests of children likely to be listening [FCC v. Pacifica Foundation, 438 U.S. 726 (1978)]. (2) The Court has held that cable television receives First Amendment Protection somewhere between the broadcast television and newspapers. Where cable television operators are subjected to content-neutral regulations intermediate scrutiny will be applied [Turner Broadcasting System, Inc. v. FCC, 518 U.S. 727 (1966)]. (3) The S. Ct. held that where a radio commentator played a tape on his talk show that he had legally obtained, but which had been recorded by another person in violation of the law such a publication was protected under the First Amendment. The Court reasoned that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern [Bartnicki v. Vopper, 535 U.S. 514 (2001)]. Rule/Press/Prior Restraint: As a general rule, any prior restraint of publication will be deemed illegal. This does not mean that , after publication, there may not be civil or criminal consequences form the publication itself. Consider the timing of the action in question and determine if its takes place before or after the publication. L. Bard Admission Rule/Bar Admission: The state is permitted, under the Due Process Clause, to inquire into the qualifications and fitness of candidates for the admission to the bar: (1) A candidate cannot be denied admission for past membership in the Communist Party [Schware v. New Mexico Board of Bar Examiners, 353 U.S. 232 (1957); (2) HOWEVER, the state can refuse bar membership to applicant who refuses to answer questions (e.g., regarding past Communist Party Membership) if his refusal obstructs the bar examiner's investigation of his qualification [Koningsberg v. State Bar of California, 366 U.S. 38 (1961)]; (3) reaffirming the validity of Konigsberg, the Court held that a state can inquire into knowing membership in subversive organizations in screening applicants for the bar. Thus, the First Amendment does not extend to unlimited protection to a bar applicant who refuses to disclose his political affiliations [Law Students Civil Rights Research Council, Inc. v. Wandmond, 401 U.S. 154 (1971)]. (4) A residency requirement by New Hampshire state bar required a Vermont resident to establish a home address in New Hampshire prior to being sworn in was held to violate the Privileges and Immunities Clause of Article IV Sec. 2 [Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985)].

Separation of Powers 1. The Powers of Congress

A. Legislative Power Rule/Legislative Power: Legislative power is primarily the power to make laws, but incidental to that power is the right to conduct investigations and hearings, consider matters upon which legislation may be enacted, and do all other things "necessary and proper" to the enactment of legislation [U.S. Const. art. I. Sec. 1]. Rule/Enumerated Powers: Congress has enumerated powers collect taxes and spend money for the general welfare, to borrow money on the credit of the United States, to regulate commerce with foreign nations and among the several states, to declare war, and to raise and support the army, navy, and militia [U.S. Const. art. 1, Sec. 8]. Rule/Enabling Clause: The enabling clause of the Thirteenth, Fourteenth, and Fifteenth Amendments give Congress the power to enforce those amendments by "appropriate legislation." B. Commerce Power Rule/Commerce Power: Despite the broad language used by the Supreme Court in Gibbons v. Ogden [22 U.S. 1 (1824)], subsequent cases used various criteria to restrict the power of Congress to regulate "commerce which concerns more states that one. Today Congress can regulate: (1) channels of interstate commerce (i.e., highways, waterways, and air traffic); (2) instrumentalities of interstate commerce (i.e., cars, trucks, ships, and airplanes); and (3) activities, that substantially affect interstate commerce. Rule/Substantial Effects Test: To validly exercise its commerce clause power under the substantial effects test, Congress must show: (1) that the regulated activity is economic in nature; and (2) that the regulated activity (when taken cumulatively throughout the nation) has a substantial effect on interstate commerce. Rule/Commerce Power/Affectation Doctrine: under the affectation doctrine, Congress now has the power to regulate any economic activity, whether carried on in one state or many, that has a substantial effect (whether directly or indirectly) upon interstate commerce. [National Labor Relations Board v. Jones and Laughlin Steel Co., 301 U.S. 1 (1937), which upheld the constitutionality of the Wagner Act in requiring collective bargaining in all industries affecting interstate commerce. Rule/Commerce Power/Cumulative Effect Doctrine: the affectation doctrine was expanded upon by the cumulative effect doctrine, in which the S. Ct. held that the federal commerce power permitted regulation of the amount of wheat a farmer could grow on his own land, for his own consumption, because this activity, together with that of other growers of wheat for their own construction, had a substantial cumulative effect upon interstate commerce [Wickard v. Filburn, 317 U.S. 111 (1942)]. Rule/Commerce Power/Limitations on Congress's Plenary Power: Congress's plenary power is not without limits. In United States v. Lopez, 414 U.S. 549 (1995), the S. Ct. struck down a federal law that made it a crime for any individual knowingly to possess a firearm in a school zone. Since gun possession near schools is neither itself an "economic" activity nor an activity that "substantially" affects interstate commerce, and since no "jurisdictional element" connecting particular gun possession to interstate commerce was expressed in the language of the statue, the S. Ct. held that Congress was acting beyond the limits of the commerce clause. Rule/Commerce Clause/Racial Discrimination: The commerce clause has been used as the vehicle to uphold laws aimed at barring racial discrimination in activities connected with interstate commerce. Congress may prohibit racial discrimination in private restaurants if a substantial portion of the food consumed traveled interstate commerce [Katezbach v. McClung, 379 U.S. 294 (1964)]. Rule/Commerce Clause/Civil Rights Act of 1964: The Court has upheld provisions of the Civil Rights Act of 1964 barring discrimination in places of public accommodation (e.g., as applied to a motel) as affecting interstate commerce [Heart of Atlanta Hotel v. United States, 379 U.S. 241 (1964)]. Rule/Commerce Clause/Loan Sharking: The S. Ct. has upheld, under the commerce power, a federal law prohibiting extortionate credit transactions (i.e., loan sharking) on the grounds that such transactions provide a major source of revenue for organized crime, and that organized crime, in turn, has an adverse effect upon interstate commerce [Perez v. United States, 402 U.S. 146 (1971)]. Rule/Commerce Clause/Tenth Amendment/Federal Law Regulating State Businesses and Employees: The Tenth Amendment, which provides that powers not delegated to the federal government are reserved to the states, or to the people, serves as a very weak limitation on the federal commerce power today. Generally applicable federal laws that regulate the states (state businesses and/or employees) do no violate the Tenth Amendment [Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)]. Rule/Commerce Clause/Tenth Amendment/State's Lawmaking Process: The Tenth Amendment does prevent Congress from interfering with a state's lawmaking processes. Congress may not commandeer the legislative process of the states by directly compelling them to enact and enforce a federal regulatory program. The S. Ct. has held invalid as violating the Tenth Amendment a federal law that required the state of New York pass legislation to arrange for the disposal of radioactive waste generated within its borders [New York v. United States, 505 U.S. 144 (1992)]. Rule/Commerce Clause/Tenth Amendment/State's Executive Officials: The Tenth Amendment also prevents Congress from commandeering state executive officials. that is Congress may not order state officials to act as administrators of federal programs. The S. Ct. held it unconstitutional the federal Brady Handgun Violence Protection Act, because it commandeered the state and local law enforcement officers for performance of various acts required by federal legislation [Printz v. United States, 521 U.S. 898 (1997)]. C. Taxing Power Rule/Taxing Power: Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare [U.S. Const. art. I, Sec. 8]. A congressional act purporting to be a "tax" should be upheld as a valid exercise of the taxing power provided that it does, in fact, raise revenue (the objective test) or that it was intended to raise revenue (the subjective test). Rule/Taxing Power/Sixteenth Amendment: The Sixteenth Amendment gives Congress the power to collect taxes on income derived from any source. Rule/Taxing Power/Regulatory Effect: Congress has used its taxing power as a necessary and proper means of achieving a regulatory effect. Generally, as long as Congress has the power to regulate the activity taxed, the tax can be used as regulating device rather than for revenue-raising purposes. The S. Ct. sustained a tax on coal producers who violated a fair competition law, even though it was clearly designed to be a penalty rather than revenue raising, (Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). (1) Even when Congress does not have power to regulate the activity taxed, the tax will nevertheless be upheld if its dominant intent is revenue raising. Thus, even though the tax may have a substantial regulatory effect, if the tax in fact raises revenue, it will be valid (e.g., the S. Ct., upheld as revenue-raising a discriminatory tax on colored oleomargarine, even though Congress did not have the power to regulate its production directly; McCray v. United States, 195 U.S. 27 (1904). (2) As a general rule, the modern judicial trend is to uphold any tax as valid, if it is, in fact, a revenue-raising measure (e.g., Although a tax on bookmaking activities had a regulatory effect, it was upheld as producing revenue (albeit negligible in amount); United States v. Kahriger, 345 U.S. 22 (1953); the taxing power was held by the S. Ct. to justify a penalty on individuals who opt not to purchase health insurance [National Federation of Independent Business v. Sebelius, 567 U.S. _(2012), Docket No. 11-393). D. Spending Power Rule/Spending Power: Congress has the power to lay and collect taxes to pay the debts and provide for the common defense and general welfare of the United States [U.S. Const. art. I. Sec. 8]. Rule/Spending Power/General Welfare Clause: The S. Ct. has construed the General Welfare Clause as a limitation on Congress's taxing and spending powers and not as an independent source of congressional power. In other words, Congress's power to tax and spend must be exercised for the "general welfare" of the United State [United States v. Butler, 297 U.S. 1 (1936)]; (e.g., the Federal Election Campaign Act, which limited the amount of a candidate could spend if he accepted money from the federal government, is a valid exercise of the power to spend for the "general welfare." The S. Ct. sustained the power of Congress to finance elections because this would reduce the harmful effect of candidate's' reliance on large private contributions [Buckley v. Valeo, 424 U.S. 1 (1976)]. HOWEVER, the power is not unlimited. Threatening the states with complete loss of Federal Medicaid funding if the states refused to comply with the expansion of the program was held unconstitutional [National Federation of Independent Business v. Sebelius, 567 U.S. _(2012) Docket No. 11-393]. Rule/Spending Power/State Compliance: By exercising its spending power, Congress can require states to comply with specified conditions in order to qualify for federal funds [e.g., Congress conditioned further grants of highway funds upon the resignation of a state highway administrator who was also the state Democratic Party chairman [Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947)]. The S. Ct. held that Congress may place a condition on the receipt of federal funds by a state if: (a) the spending serves for the general welfare; (b) the condition is unambiguous; (c) the condition relates to the federal program; (d) the state is not required to undertake unconstitutional action; and (e) the amount in question s not so great as to be considered coercive to the state's acceptance. [South Dakota v. Dole, 483 U.S. 203 (1987), the S. Ct. rejected South Dakota's Tenth and Twenty-First Amendment arguments and upheld Congress's withholding of federal highway funds from states permitting the purchasing of alcoholic beverages by individuals under the age of 21]. E. War and Defense Power Rule/War and Defense Power: Congress may: (1) declare war; (2) raise and support armies; (3) provide and maintain a navy; and (4) organize, arm, discipline, and call forth a militia. [U.S. Const. art. I, Sec.8]. Rule/War and Defense Powers/Broad in Application: The war power confers upon Congress a very broad authority to initiate whatever measures it deems necessary to provide for the national defense, in peacetime as well as wartime. (1) Thus, the military draft and selective service systems have repeatedly been upheld [United States v. O'Brien, 391 U.S. 367 (1968)]. (2) Similarly, the power of Congress to initiate wage, price, and rent control of the civilian economy during wartime has been sustained [Yakus v. United States. 321 U.S. 414 (1944)]. Rule/War and Defense Powers/Exclusion of Civilians/Military Courts: the exclusion of civilians from certain restricted areas during wartime has been approved [Korematsu v. United States, 323 U.S. 214 (1944)]. Congress has the power to establish military courts and tribunals. Since military tribunals are not Article III courts, the accused in court-martial proceedings is not entitled to the same procedural safeguards set forth in the Bill of Rights (e.g., the right to a jury trial or grand jury indictment). Rather, an accused is safeguarded by the procedures provided in the Uniform Coded of Military Justice [U.S. Const. art. I, Sec. 8, Cl. 14]. (1) Military courts have jurisdiction over offenses committed by servicemen on a military post or in an area under military control. Jurisdiction is determined by the status of the individual as an armed service member, not the connection between the service and the offense [Solorio v. United States, 483 U.S. 435 (1987)]. (2) Military courts have jurisdiction over current members of the armed forces, even while on pass or on leave, for non-service matters. (3) As long as civilian courts are available, military courts are denied jurisdiction over civilians and their dependents unless Congress has affirmatively granted such jurisdiction [E.g., The S. Ct. held that, absent military exigency, the president may not try alleged terrorists in special military courts if Congress has enacted a statute denying the president that authority. Congress, however, may affirmatively grant that authority to the president [Hamadan v. Rumsfield, 548 U.S. 557 (2006)]. (4) Although civilian courts have no general power to review over court-martial proceedings, there can be a limited examination of the regularity of such proceedings by a civilian court [Burns v. Wilson, 339 U.S. 103 (1950)]. F. Investigatory Power Rule/Investigatory Power: Although Congress does have any express constitutional power to investigate, the Necessary and Proper Clause permits Congress to conduct investigations incident to its legislative power [McGrain v. Daugherty, 273 U.S. 135 (1927)]. (1) Congress's investigatory power is broad, and it may extend to any matter within a legitimate legislative sphere; (2) If a witness fails to appear after being summoned before a congressional committee of fails to answer a question posed by such a committee, Congress may either: (a) cite the witnesses for contempt; or (b) refer the matter to the U.S. attorney general for prosecution; (3) Generally, a witness can raise as a defense: (a) the privilege against self-incrimination; (b) lack of due process safeguards; or (c) interference with the First Amendment rights to privacy and freedom of association [e.g., the S. Ct. upheld the refusal of a member of the NACCP to release membership lists to a legislative committee because there was not a sufficient nexus between the investigation and the records sought (Gibson v. Florida Legislative Committee, 372 U.S. 539 (1963)]. G. Property Power Rule/Property Power: Congress has the power to dispose of and make all needful Rules and Regulations respecting the Territory of Property or other Property belonging to the United States. H. Power of Eminent Domain Rule/Power of Eminent Domain: Although the Constitution does no expressly give Congress the power of eminent domain, the power to take property is "implied in aid of the other powers granted to the federal government [Kohl v. United States, 91 U.S. 367 (1876)]. This power is limited, however. The Fifth Amendment provides. in such part that private property shall not be taken for public use without just compensation [Note: be sure to include the analysis under the Takings Clause]. I. Admiralty and Maritime Power Rule/Admiralty and Maritime Power: The S. Ct. has determined that the Necessary and Proper Clause give Congress complete and plenary power to fix and determine maritime laws throughout the country [Southern Pacific Co v. Jensen, 244 U.S. 205 (1917)]. J. Bankruptcy Power Rule: Congress has the power to "establish uniform law on the subject of bankruptcies throughout the United States [U.S. Const. art. I, Sec. 8 Cl. 4]. K. Postal Power Rule/Postal Power: Congress may establish post roads and post offices [U.S. Const. art. I, Sec. 8, cl. 7]. The post office has now been moved out of the Cabinet and is a self-operated entity within the government. L. Copyright and Patent Power Rule/Copyright and Patent Power: Congress may promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective writings and discoveries [U.S. Const., art. I, Sec. 8 cl. 8] M. Speech and Debate Clause Rule/Speech and Debate Clause: The Senators and Representatives ...for any speech or debate in either house...shall not be questioned in any other place [U.S. Const. art. I, sec. 6, cl. 1]. The speech and debate clause protects legislators and their aides against criminal or civil proceedings for legislative acts [United States v. Johnson, 383 U.S. 169 (1966); Gravel v. United States, 408 U..S. 606 (1972)]. Members of Congress, HOWEVER, can be liable based on a defamation for issuing press releases or newsletters that injure reputation [U.S. Const. art. I, Sec. 6, cl. 1]. (1) The clause insulates members of Congress for "acts that occur in the regular course of the legislative process, but does not bar prosecution for bribe to influence legislation [United States v. Brewster, 408 U.S. 501 (1972)]. (2) The Speech and Debate Clause forbids the courts from enjoining members of Congress and their aides from issuing subpoenas or conducting their inquiry [Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975)]. N. Civil War Amendments Rule/Civil War Amendments: (a) Congress has the power to enforce: (1) the Thirteenth Amendment, banning slavery; (2) the Fourteenth Amendment, prohibiting the states from violating protections regarding due process, equal protection, and privileges and immunities; and (3) the Fifteenth Amendment, prohibiting the states from discriminating in voting rights. (b) To validly enforce the Fourteenth and fifteenth Amendment, Congress must show that: (1) state governments have engaged in widespread violations of the amendment; and (2) the legislative remedy is congruent with and proportional to the violations; (c) Congress may enforce the Thirteenth Amendment ban on slavery even when the state governments have not violated the amendment. HOWEVER, Congress may enforce the Fourteenth and Fifteenth Amendments only when state governments have widely violated those Amendments. Rule/Civil War Amendments/Thirteenth Amendment: The Thirteenth Amendment is applicable to individuals as well as states; it contains an enforcement clause enabling Congress to pass all necessary legislation; the Court has held that the enforcement provision of the Thirteenth Amendment has extended Section 1982 of the 1866 Civil Rights Act to insure minorities the freedom to inherit, purchase, lease, sell, hold, and convey real and personal property. The Thirteenth Amendment has been construed to prohibit both public and private racial discrimination in housing. Rule/Fourteenth Amendment: The Fourteenth Amendment only protects a person from the actions of local governments, not private actors. Thus, the Fourteenth Amendment will not help Congress prevent racial discrimination by private individuals.

The Nature of Judicial Review 2. The United States Supreme Court

Rule/ Original Jurisdiction/Judicial Review: Under Article III, Section 2, the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party." Congress may neither enlarge nor restrict the Supreme Court's jurisdiction [Marbury v. Madison, 5 U.S. 137 (1803)]. Rule/Appellate Jurisdiction/Judicial Review: Article III, Section 2 further provides that "in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." The Supreme Court has the power to: (1) hold acts of the other branches of the federal government unconstitutional (the executive branch and congress) [Marbury v. Madison, 5 U.S. 137 (1803)]. (2) hold state statutes unconstitutional [Fletcher v. Peck, 10 U.S. 87 (1810)]; (3) review state court decisions to ensure that the states act in conformity with the U.S. Constitution and federal statutes [Martin v. Hunter's lessee, 14 U.S. 304 (1816); and (4) decide other state law questions: (a) in cases of diversity jurisdiction: (1)the S Ct. will defer to an existing state court interpretation of state law; (2) the S. Ct. will interpret a state law which has not already been interpreted by the state court based on the S. Ct.'s prediction of how the state court will interpret the statute; and (3) the S. Ct. will abstain from a decision if the state court's interpretation of unsettled state law could end the dispute and the S. Ct. cannot predict how the state court will rule. Rule/Methods of Invoking S. Ct. Appellate jurisdiction [28 U.S.C. Sec. 1257]: Under federal law, there are two methods for invoking S. Ct. appellate jurisdiction: (1) by appeal (where jurisdiction is mandatory; and in 1988, an act of Congress reduced obligatory review on appeal to decisions of three-judge federal district courts; (2) by writ of certiorari (discretionary review where four or more justices vote to hear the case); (a) since the two categories of decisions that were subject to obligatory review on appeal have been eliminated, practically all decisions from state supreme courts and federal courts are now reviewable by a writ if certiorari, decisions made purely on state law. (b) Grounds for certiorari include: (1) cases involving conflicts between different federal courts on appeal; (2) cases involving conflicts between the highest courts of two states; (3) cases involving conflicts between the highest state court and a federal court of appeals; or (4) cases from state courts or U.S. courts of appeal involving important, yet, unresolved issues. Adequate and Independent State Grounds Rule/Federal Question/Adequate and Independent State Grounds: Although a state court decision may involve a federal question, if the state court judgment can be supported for adequate and independent state ground, the S. Ct. will not take jurisdiction. To do so would be tantamount to rendering an advisory opinion [Herb v. Pitcaim, 324 U.S. 117 (1945)]. (a) Unlike other doctrines of judicial review, which apply to the entire federal judiciary, adequate state grounds apply only to the Supreme Court. Rule/State Law/Adequate and Independent State Grounds: Where a state court clearly states that a state law violates other state law or a provision of the state constitution, that decision will be an adequate and independent state ground (regardless of whether the opinion also decides that the state law violates federal law as well). (a) where a state court holds that a state law violates both the state and federal constitutions, the doctrine of adequate state grounds will apply. Rule/State's Federal Interpretation/Adequate and Independent State Grounds: Where a state court's decision is based upon a federal interpretation of a similar federal law, adequate and independent state grounds will not apply. The Supreme Court may review in this situation. Rule/State's Interpretation Unclear/Adequate and Independent State Grounds: where it is unclear whether the state court made its decision based upon state or federal interpretations of statutes, the S. Ct may take the case, although it also has the power in that situation to dismiss or remand the case for clarification from the state court. (a) the independence prong focuses on whether it is apparent from the four corners of the opinion that the state court judgment was settled based on a state court interpretation of state law precedent of the state's constitution. If not, the S. Ct. may (1) obtain clarification from the state court; or (2) presume that the state court decision was rooted - at least in part - in federal law, and review the case.

Due Process and the Incorporation of Portions of the Bill of Rights 3. Substantive Due Process

Rule/Economic Regulation/Rational Basis Scrutiny: (a) In the past, the doctrine of substantive due process was frequently used to protect rights of property and contract and to invalidate legislation that regulated economic activity. HOWEVER, this approach to substantive due process was abandoned by the S. Ct. in the 1930s. (b) The S. Ct. held that challenges to economic regulation are to be subjected to deferential rational basis scrutiny, with a challenger having the burden of proving that a regulation lacks a rational connection to a legitimate government interest. As a result, since the New Deal, the S. Ct. has not struck down any economic regulation on substantive due process grounds. (c) Such an economic regulation will be upheld if it is rationally related to a legitimate government interest. Rule/Fundamental Rights/Strict Scrutiny Review: The substantive due process doctrine is now used to evaluate governmental regulations that affect fundamental rights of personhood, rather than the rights of property. Strict Scrutiny Review, or other forms of heightened scrutiny, apply to laws that burden the exercise of fundamental rights, including the right to vote, the right to travel, the right to privacy, First Amendment Rights, family rights, and other rights referred to as fundamental rights. Rule/Contraceptives: (1) The S. Ct. invalidated a state law prohibiting the use of contraceptive devices, thus recognizing a right of martial privacy [Griswold v. Connecticut, 318 U.S.479 (1965)]; (2) The S. Ct. later expanded the Griswold decision and held that the right to use contraceptives belonged to singles as well as married persons [Eisenstadt v. Baird, 405 U.S. 438 (1972)]; (3) The S. Ct. invalidated a state law that prohibited the sale of contraceptives to minors except through a licensed pharmacists [Carey v. Population Services International, 431 U.S. 678 (1977)]. HOWEVER, the Court held that corporations cannot be required to pay for contraception coverage for their female workers (the first time that the Court has recognized a for-profit's corporation's claim of religious belief), Burwell v. Hobby Lobby, 573 U.S._(2014), Docket No. 13-354. Rule/Marriage: (1) The right to marry is deemed fundamental. Any substantial interference with that right must be necessary to further a compelling interest [Zablocki v. Redhail, 434 U.S. 374 (1978)]. (2) In June 2015, the S. Ct. announced that governmental bans on same-sex marriage are unconstitutional under the U.S. Constitution. Specifically, the Court held that such bans violate the substantive due process doctrine and the fundamental right to marriage. This ruling impacts every state with a statutory or constitutional ban on same-sex marriage. All states must now recognize the same-sex marriage legally performed in other states, assuming that such marriages are otherwise in accord with the laws of the state where the marriage occurred. Most significantly, all states must now allow same-sex couples to get married and accord such couples the same rights and obligations otherwise accorded people who marry [Obergefell v. Hodges, 576 U.S. _(2015), Docket No. 14-456]. Abortion Rule/Abortion: (1) The Casey holding rejected the trimester approach to reproductive freedom that was established in Roe and adopted the undue burden standard [Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 883 (1992); Roe v. Wade 410 U.S. 113 (1973)]. (a) A woman has a protected privacy interest in choosing to have an abortion before the fetus was viable; (b) During the first two trimesters (that is, before viability), the government may regulate (but not ban) abortion in the interest either of the mother's health or of the potential life of the fetus. The regulation may not impose an "undue burden" on the woman's right to choose an abortion. (c) For the period of time subsequent to viability, the S. Ct. reaffirmed Roe in concluding that a state may regulate, and even proscribe, abortion except where it is necessary...for the preservation of the life or health of the mother. Rule/Consent Requirements: (a) Neither spousal notification nor spousal consent may be required before a woman may obtain an abortion [Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976)]. (b) HOWEVER, parental consent may be required before an unemancipated woman under the age of 18 obtains an abortion if the state establishes a "judicial bypass" procedure through which a minor may obtain an abortion with the consent of a judge [Hodgson v. Minnesota, 497 U.S. 417 (1990)]. Rule/Public Funding: There is no constitutional right for indigent woman to obtain government funding for abortions [Maher v. Roe, 432 U.S. 464 (1977)]. Furthermore, a state may prohibit the use of public facilities and publicly employed staff in performing abortions [Webster v. Reproductive Health Services, 492 U.S. 490 (1989)]. Rule/Late-Term Abortion: Where a Nebraska statute prohibited "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child," such a statute was unconstitutional because it did not provide an exception for the health of the mother and because it prohibited the dilation and evacuation procedure used in most second-trimester abortions, as well as the less frequently used partial-birth procedure [Stenberg v. Carhart, 530 U.S. 914 (2000)]. (b) Subsequently, the S. Ct. upheld a federal ban on partial birth abortions. The Court rejected a facial challenge to a prohibition against the use of this particular type of abortion procedure, but left open to the possibility of challenges to the act as applied to specific individuals [Gonzales v. Carhart, 550 U.S. 124 (2007)]. Rule/Protests: The S. Ct. reversed a Massachusetts law which made it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility, allowing protests, counseling, and other speech ad rejecting the concept of "buffer zones" around these clinics [McCullen v. Coakley 573 U.S. _(2014), Docket No. 12-1168]. Rule/Family Relations: A fundamental right exists for related persons to live together. A zoning ordinance prohibiting members of an extended family from living in a single household has been subjected to heightened scrutiny and held unconstitutional. EXCEPTION: This fundamental right does not apply to unrelated persons. Rule/Sexual Orientation: The S. Ct. applied a stringent form of rational basis scrutiny and held that a statute making it a crime for a person to engage in deviate sexual intercourse with another individual of the same sex furthered no legitimate state interest. (2) It was held unconstitutional to restrict U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, giving same-sex couples the rights of married couples in terms of tax benefits, health care, retirement, and other areas of federal regulation [United States v. Windsor, 570 U.S. _(2013) Docket No. 12-307]. (3) The fundamental right to marry is guaranteed- to same-sex couples [Obergefell v. Hodges, 576 U.S. _(2015) Docket No. 14-556]. Rule/Parental Rights & Visitation: Parents were held to have a protected liberty interest concerning the control and visitation with their children by others, including grandparents [Troxel v. Granville, 530 U.S. 57 (2000)]. Rule/Private Education: Parents have a right to privately educate their children outside the public school system [Pierce v. Society of Sisters, 268 U.S. 510 (1925)]. Rule/Obscene Material: (1) The right to possess obscene material in the privacy of one's home is protected [Stanley v. Georgia, 394 U.S. 557 (1969)]; (2) HOWEVER, the government can severely restrict the sale, purchase, receipt, transport, and distribution of obscene materials, both in stores and through the mail. Furthermore, the state can criminalize even the private possession of child pornography [Osborne v. Ohio, 495 U.S. 103 (1990)]. Rule/Right to Die: (1) The right of a terminally ill or comatose person to choose to die is not presently a fundamental right. (2) Nevertheless, a person has a well established due process "liberty" interest in not being forced to undergo unwanted medical procedures, such as life support [Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990)]; (3) However, the state has a countervailing interest in preserving life. A terminally ill patient has no right to assisted suicide [Washington v. Glucksberg, 521 U.S. 702 (1997)]. Rule/Right to Travel: (1) The privileges and Immunities Clause of Article IV, Section 2 and the Commerce Clause mutually enforce the right of every citizen to travel freely from state to state [Griffine v. Breckenridge, 403 U.S. 88 (1971)]. (2) Durational residency requirements for dispensing government benefits are subject to strict scrutiny [e.g., (a) A one-year waiting period before receiving welfare benefits or state-subsidized medical care is invalid. (b) Reasonable residency requirements are valid for obtaining a divorce as well as for obtaining reduced tuition at state universities]. (3) The right to travel is not absolute and may be subject to reasonable restrictions, and Congress may authorize the president to restrict travel to certain countries or danger areas [Zemel v. Rusk, 381 U.S. 1 (1965)]. Rule/Right to Vote: (1) The fundamental right of U.S. citizens over age 18 to vote extends to all federal, state, and local elections, as well as the primaries. Strict scrutiny review is used to adjudicate restrictions on the right to vote; (2) HOWEVER, government regulations of ballot-access by candidates - based upon age, duration of residency, or payment of filing fees - require only minimum rational basis scrutiny. (a) In addition, voter registration requirements and regulation of the time, place, and manner of casting ballots are valid so long as they do not impose an "undue burden" on the right to vote. (3) A rule of "one-person, one-vote" is generally followed. Whenever the government attempts to establish a new apportionment or redistricting scheme, fairly exact mathematical equality between the districts is required so as not to dilute the fundamental right to vote; (4) There must be equality in the distribution of the right to vote. (a) Imposition of a poll tax as perquisite to vote violates equal protection and is unconstitutional [Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)]; (b) limiting voting for school board elections to parents of schoolchildren and/or property owners is unconstitutional [Kramer v. Union Free School District, 345 U.S. 662 (1969)]; (c) EXCEPTION: Voting can be limited to landowners for a special purpose "water storage district" (which cannot enact laws or perform government functions) [Bell v. James, 451 U.S. 355 (1981)]. (5) In 2013, the Court effectively struck down the portions of the Voting Rights Act of 1965 that required certain states and local governments to obtain federal pre-clearance before changing their voting laws or practices, enabling states to implement new voter identification laws, eliminate same-day registration, and other measures that affect voting rights [Shelby County v. Holder, 570 U.S. _(2013), Docket No. 12-96]. Rule/Medical Records: (1) There is some right to privacy recognized for medical records, but informational privacy is no a fundamental right and the privacy interest must be balanced against the public interest in disclosure. A law requiring physicians to report certain prescriptions to the state for storage in a database has been held constitutional [Whalen v. Roe, 429 U.S. 589 (1977)]. (2) In 1977, the Court seemed to hold (1) that there is an implied zone of privacy into which medical records would fall, but (2) a patient ID requirement was a reasonable exercise of the State's broad police powers and 14th Amendment Due Process violation occurred. The Court recognized two privacy interests: (a) the individual interest in avoiding disclosure of personal matter; and (b) the interest in independence in making certain kings of important decisions [Whalen v. Roe, 429 U.S. 589 (1977)]; (3) HOWEVER, Whalen v. Roe provided little guidance for lower courts dealing with medical privacy issues. Regarding the first of the Court's dual privacy interests, "the individual interest in avoiding disclosure of personal matters," Whalen left unclear what constituted a violation of the right, and failed to establish what type of constitutional treatment the courts were to use when assessing it. The Court's second privacy interest in independence in making certain kinds of important decisions, had been fleshed out by other S. Ct. decisions, but there was no clear or legal precedent for a privacy interest in nondisclosure of personal matters.

Due Process and the Incorporation of Portions of the Bill of Rights 1. Incorporation of the Bill of Rights

Rule/Incorporation of the Bill of Rights: As originally enacted, the Bill of Rights (the first 10 amendments to the U.S. Constitution) was applicable only to the federal government, not to the states. In 1868, the Fourteenth Amendment was adopted, which provided: "No state shall make or enforce any law which shall abridge the privileges and the immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Rule/Fourteenth Amendment Privileges and Immunities Clause/Welfare and Unemployment Benefits: (a) A few years after the Fourteenth Amendment was adopted, the S. Ct. held that the fundamental rights set forth in the Bill of Rights were not privileges and immunities under national citizenship [Slaughter-House Cases, 82 U.S. 36 (1873)]. (b) In 1999, the S. Ct. held that under the Fourteenth Amendment Privileges and Immunities Clause (along with the fundamental right to travel), new residents could challenge a state's denial of full unemployment benefits until a specified waiting period has been satisfied. (c) The Court struck down a California law that limited the payment of welfare benefits for first-year residents to the amount they would have received from their former state. The law violated the right to travel freely from state to state, which the Court said is protected by the Fourteenth Privileges and Immunities Clause as a right of national citizenship [Saenz v. Roe, 526 U.S. 489 (1999)]. Rule/Fourteenth Amendment Due Process Clause/Rights Incorporated to the States: Although the S. Ct. rejected the argument that the Due Process Clause incorporated all of the Bill of Rights, under the doctrine of selective incorporation, the following specific provisions are now applicable to the state [Adamson v. California, 332 U.S. 46 (1947)]. (1) the First Amendment freedom of speech and freedom of press the right to assemble and petition the government for a redress of grievances, the right to free exercise of religion, and the prohibition against the establishment of religion; (2) the Fourth Amendment provisions guaranteeing the right to be free from unreasonable searches and seizures [Ker v. California, 374 U.S. 23 (1963)]; (3) the Fifth Amendment protection against double jeopardy [Benton v. Maryland, 395 U.S. 784 (1969), privilege against self-incrimination [Malloy v. Hogan, 378 U.S. 1 (1964), and requirement of just compensation when private property is taken for public use; (4) the Sixth Amendment rights guaranteeing the accused in criminal prosecutions a speedy and public trial [Klopfer v. North Carolina, 386 US. 213 (1967), the right to confront and cross-examine witnesses [Pointer v. Texas, 380 U.S. 400 (1965)], the right to counsel [Gideon v. Wainwright, 372 U.S. 335 (1963)], and the right to a jury trial in criminal cases [Duncan v. Louisiana, 391 U.S. 145 (1968)]; (5) the Eighth Amendment prohibition against cruel and unusual punishments; (6) the S. Ct. recently held that, in addition to applying to the District of Columbia, the Second Amendment right to keep and bear arms applies to state and local governments. (7) The S. Ct. has also held that the Due Process Clause does not permit a state to infringe on the fundamental right of parents to make childrearing decisions, and that parents can make decisions concerning the care, custody, and control of their children [Troxel v. Granville, 530 U.S. 57 (2000)]. Rule/Rights not Incorporated via 14th Amendment: (1) The Fifth Amendment right to a grand jury trial in criminal cases; and (2) the Seventh Amendment right to a jury trial in civil cases. (3) the Third Amendment, no right to prevent quartering soldiers in your home; (4) Eighth Amendment, prevent excessive fines. Rule/Scope of the Due Process Clause: (1) The Due Process and Equal Protection Clauses of the Fourteenth Amendment protect the right of persons, and not merely citizens; (2) A corporation is considered a "person" for purposes of due process and equal protection. Note, however, that a corporation is not entitled to the privilege against self-incrimination; (3) Aliens are considered persons for purposes of due process and equal protection.

Due Process and the Incorporation of Portions of the Bill of Rights 2. Procedural Due Process

Rule/Procedural Due Process: Both the Fifth and the Fourteenth Amendments protect against the deprivation of life, liberty, or property without due process of the law. Where there is a deprivation of one's life, liberty, or property interests, the individual is entitled to fundamentally fair procedural safeguards (e.g., some form of notice and meaningful hearing within a reasonable time). Rule/Deprivation of Liberty: (1) Acts that invade a liberty interest include: (a) Freedom on Bodily Restraints - a state must grant a parolee an evidentiary hearing before it revokes parole or probation [Morrissey v. Brewer, 408 U.S. 471 (1972)]; (b) Physical Punishment - corporal punishment of pupils in a public school is valid, although a liberty interest exists [Ingraham v. Wright, 430 U.S. 651 (1977); (c) Commitment to a Mental Institution - an adversary hearing must be provided to adults before they are committed to a mental institution against their will. Minor children have a liberty interest in not being confined unnecessarily for medical treatment. In the case of minor children, a screening by a neutral fact-finder is required [Parham v. J.R., 442 U.S. 584 (1979)]. EXCEPTION: Acts that do not invade liberty interest include: (1) injury to reputation - injury to one's reputation is the absence of a related harm to a more tangible interest (such as an employment opportunity) is not a deprivation of a liberty interest [Paul v. Davis, 424 U.S. 693 (1976) ; and (2) forced administration of medicine - the federal government may administer antipsychotic drugs against a defendant's will in order to render him competent to stand trial, as long as the treatment is medically appropriate, does not cause substantial side effects, and is necessary to significantly further important governmental trial-related interests [Sell v. United States, 539 U.S. 166 (2003)]. Rule/Procedural Due Process/Property Interests: (1) There is a constitutionally protected property interest in the statutory entitlement to continued attendance at a public school [Goss v. Lopez, 419 U.S. 565 (1975)]; (2) On the other hand, no prior evidentiary hearing is required when a student is dismissed for academic reasons [Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978)]. Rule/Procedural Due Process/Continued Welfare Benefits: A property interest is created by a statutory entitlement to continued welfare benefits [Goldberg v. Kelly, 397 U.S. 254 (1970)]. Rule/Procedural Due Process/Retention of Driver's License: A state may not revoke a driver's license without a hearing [Bell v. Burson, 402 U.S. 535 (1971)]. Rule/Procedural Due Process/Public Employment: (1) There is a property interest in a person keeping his job if the employment is under a tenure system or there is a clear understanding, either express or implied, that the employee can be terminated only for cause [Perry v. Sniderman, 408 U.S. 593 (1972)]. (2) HOWEVER, the S. Ct. has held that there was no property interest where a police officer held his position "at the will of" the public employer [Bishop v. Wood, 426 U.S. 341 (1976)]. (3) Furthermore, there is no property interest when a state refuses to renew a fixed-term contract [Board of Regents v. Roth, 408 U.S. 564 (1972)]. Rule/Procedural Due Process/Prejudgment Garnishment/Employment Benefits: (1) prejudgment attachment or garnishment of wages, without notice or hearing, violates procedural due process [Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)]. (2) A due process property interest does not arise when an individual is first applying for employment. HOWEVER, if he has already been getting employment benefits, he has a property interest in continuing receipt of those benefits. Rule/Procedural Due Process/Forfeiture of Property: Due process is satisfied where the government sends a certified letter to prison to notify an inmate that property seized will be forfeited, because such an action is reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Actual notice is not required; constrictive notice will suffice [Dusenbery v. United States, 534 U.S. 161 (2002)]. Rule/Procedural Due Process/Business Licensing: The First Amendment and due process require that all licensing scheme for adult businesses provide applicants with prompt judicial determination of their claim that the government unconstitutionally denied a license, as opposed to mere prompt access to judicial review [City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)]. Rule/Procedural Due Process/State Action Requirement: As with any other constitutional right, procedural due process is not required where there is no state action [Flagg Brothers v. Brooks, 436 U.S. 149 (1978)]. Rule/Procedural Due Process/Life Interests: Capital punishment is clearly a deprivation of a life interest, and rigorous due process protections are applicable. When life interests have been claimed in other contexts, such as in abortion or right-to-die situations, the S. Ct. has addressed under other provisions of the Constitution. Rule/Procedural Due Process/Types of Process Required: (a) Once it is determined that there is sufficient deprivation of life, liberty, or property, the next step is to decide what process is required. In order to determine what procedural safeguards are necessary, the S. Ct. set fort he following factors to look at [Mathews v. Eldridge, 424 U.S. 319 (1976)]: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of this interest through the procedures used, and the probative value of additional or substitute procedures; (3) the government's interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. [e.g., The S. Ct. held that a full hearing was not required for the dismissal of a medical student from a state medical school for academic deficiency because the decision was an evaluative one, made by faculty officers and outside practitioners (Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78 (1979); The S. Ct. held that it was not necessary for a public school to give a student a hearing before imposing corporal punishment (Ingraham v. Wright, 430 U.S. 651 (1997); The S. Ct. ruled that a temporary suspension of a driver's license without a hearing, where the driver refused to take a Breathalyzer test, was valid, because he had a right to an immediate hearing following the suspension [Mackey v. Montrym, 443 U.S. 1 (1979)]. (b) Due process requires a judge to recuse himself when the judge has a pecuniary interest in the case, such that an average judge would be possibly tempted to render an imbalanced or untrue judgment (e.g., if one party to a case had a significant and disproportionate influence in getting the judge elected, then due process requires that the judge recuse himself. Such a disproportionate influence exists when, for example, an appellant contributed more than 50% of all campaign contributions to the appellate judge's election campaign [Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)]. Rule/Procedural Due Process/Irrebuttable Presumptions: (a) In recent cases, the S. Ct., has held that irrebuttable presumptions violate procedural due process; (b) Civil Proceedings - The S. Ct. held that a statutory presumption that a pregnant schoolteacher was physically incapable of performing her duties was unconstitutional [Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)]. (2) A state law requiring children of unwed fathers to become wars of the court was invalidated because its statutory effect was to a create a conclusive presumption that unwed fathers were unfit parents [Stanley v. Illinois, 405 U.S. 645 (1972)]. Rule/Procedural Due Process/Irrebuttable Presumptions/Criminal Cases: A statutory presumption that possession of marijuana was conclusive proof that the drug had been imported was invalidated, because marijuana is frequently grown in the United States as well as abroad [Leary v. United States, 395 U.S. 6 (1969)].

Due Process and the Incorporation of Portions of the Bill of Rights 4. Takings Clause

Rule/Takings Clause/DP CL of 14th Am: The Fifth Amendment provides that private property shall not be taken for public use without just compensation. This prohibition also applies to the states through the Due Process Clause of the Fourteenth Amendment. Rule/Advance Legitimate State Interest: A taking of property occurs if a regulation of private property "does not substantially advance legitimate state interests" [Agins v. City of Tiburon, 447 U.S. 225 (1980)]. (a) Agins was overruled; the S. Ct. held that the extent to which a regulation advances a legitimate state interest in not a relevant factor in determining if a taking has occurred [Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005)]. Rule/Direct Appropriation/No Just Compensation Requirement: (1) Where the state validly regulates for health, safety, or welfare purposes under its police power, the government action merely amounts to regulation, and payment of just compensation is not required. HOWEVER, a taking does not occur where there is an actual appropriation of one's property [Loretto v. Teleprompter Manhattan CATV Corp., 455 U.S. 904 (1982)]. Rule/Regulatory Taking: (1) Any permanent, physical invasion, no matter how minor, will constitute a taking; (2) A land-use regulation is a taking if it denies an owner all reasonable, economically beneficial uses of his land; (3) To analyze regulations that merely decrease economic value, the court may use a balancing test to determine if there is a taking the court must balance: (a) the economic impact of the regulation on the claimant, (b) the extent to which the regulation has inferred with distinct investment-backed expectations, and (c) the character of the government action [Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Penn Central Transportation Co. v. New York, 438 U.S. 104 (1978)]. (4) A state zoning law was passed after the owner purchased the property, and was held to constitute a taking because the law precluded the owner from erecting a permanent structure on his land [Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)]. Rule/Takings Clause/Temporary Restrictions: When considering whether a taking has occurred, a court will look at both dimensions of a property interest (metes and bounds) and he term of years. A temporary restriction causing a diminution in value (such as a 32-moth moratorium on development in an area) is not a taking of the parcel as a whole because the property will recover value when the prohibition is lifted, and thus the regulation will not permanently deprive the owner of all economically beneficial uses of his land [Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)]. Rule/Conditional Permits: (1) The government can place a condition on the grant of a permit for land development if: (a) there is a logical nexus between the condition and the governmental purposes; and (b) there is rough proportionality between the impact on the proposed development and the governmental objectives served by the condition [Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994)]. Rule/Takings Clause/Transfer to Private Developer: The S. Ct. has interpreted the "pubic use" language of the Takings Clause to mean "public purpose," and held that a city has the power to take private property and transfer it to a private developer because of the public benefits of the proposed development [Kelo v. City of New London, 545 U.S. 469 (2009)].

The Relation of the Nation and the States in the Federal System. 1. Nature and Scope of Federal and State Powers 2. Intergovernmental Immunities 3. Authority Reserved for the States 4. Reserved State Power in Taxation

1. Nature and Scope of Federal and State Powers Rule/Tenth Amendment/Fundamental Principles: The fundamental principle of federalism is the co-existence of the national government and the state governments. The Tenth Amendment provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people. While each state has a general police power, there is no federal police power. The federal government must legislate through one of its enumerated powers, whereas the states may regulate any health, safety, welfare, moral, or aesthetic interest through their respective police powers. Rule/Tenth Amendment/Limits on State's Policing Powers: The U.S. Constitution limits the state's police powers by: (a) reserving certain enumerated powers exclusively for the federal government; (b) restricting both the federal and state governments from acting in violation of the constitutional provisions; and (c) providing under the Supremacy Clause that of Congress enacts legislation with the intention of preempting state law, the congressional regulation will control. 2. Intergovernmental Immunities (a) Immunity if the Federal Government Rule/Private Individuals Suing Fed'l Gov't: The federal government and its agencies are immune from suits by private individuals except where they allow themselves to be sued [e.g., The U.S. Postal Service is part of the federal government rather than a separate antitrust person under the Sherman Act, and, therefore is not subject to antitrust liability [U.S. Postal Service v. Flamingo Industries (USA) Ltd., 540 U.S. 736 (2004)]. (b) Taxation of the Federal Government by a State: Rule/Taxation of the Federal Government by a State: In accordance with McCulloch v. Maryland [17 U.S. 316 (1819)], the federal government and its agencies are immune from state taxation and regulation. States may nevertheless collect a nondiscriminatory tax on person who deal or contact with the federal government. (a) a nondiscriminatory gross-receipts tax applied to a contractor performing work for the federal government has been upheld [James v. Dravo Contracting Co., 302 U.S. 134 (1937)]. (b) A state's sales tax on goods purchased by a contractor, even if the goods will eventually be sold to the United States, is valid. In a "cost-plus" contract with the federal government, the tax will be a part of the cost [Alabama v. King & Boozer, 314 U.S. 1 (1941)]. HOWEVER, such a sales tax is invalid if it falls upon the federal government itself. A state property tax is valid when applied upon a building owned by the United States by used by a contractor. Likewise, a building owned by a contractor doing work for the United States will be subject to a property tax [Detroit v. Murray Corp., 355 U.S. 489 (1959)]. (d) A state income tax applied to employees of the United States domiciled within that state is valid [Graves v. O'Keefe, 306 U.S. 466 (1939)]. Rule/Activities and Instrumentalities of Fed'l Gov't within States: As a general rule the Supremacy Clause impliedly prevents the states from regulating the activities of agents or instrumentalities of the federal government if the regulation will interfere with the government's ability to carry out its federal functions [Johnson v. Maryland, 254 U.S. 51 (1920)]. Congress has the power to dispose and make all needful rules and regulations respecting the territory or other property belonging to the United States. Thus, federal lands (e.g., military bases, Indian Reservations, FBI Offices, etc.) are subject to the authority of the federal government, except to the extent that Congress has ceded jurisdiction to the state [U.S. Const., art. IV, Sec. 3, cl. 2]. E.g., states cannot require a federal contractor to obtain a state license to construct facilities at an Air Force base located within the state [Miller v. Arkansas, 352 U.S. 187 (1956)]. (c). Immunity of State Governments Rule/Federal Gov't Suing the State: The federal government, or one of its agencies or instrumentalities may sue a state without its consent. In this case the S. Ct., has original, but not exclusive jurisdiction. Rule/Federal Gov't or Sister State Suing a State: A state may sue its sister state without its consent. In this case, the S. Ct., has original and exclusive jurisdiction. Rule/Private Citizens Suing Own State and Sister States: Generally, the Eleventh Amendment prohibits citizens of one state from suing another state in federal court. This rule has been extended to prohibit suits by a citizen of a state against his own state. EXCEPTIONS: (1) A state may sue if it consents to be sued; and (2) A state officer may be sued for injunctive relief on the theory that his allegedly unlawful conduct was beyond the scope of his authority. Rule/10th Am. Prohibits Congress from Commandeering: Congress is prohibited by the Tenth Amendment state governments. The Supreme Court has attempted to limit Congress' use of the Commerce Clause to regulate integral operations in areas of traditional government functions [National League of Cities v. Usery, 426 U.S.. 833 (1976). HOWEVER, Usery was overruled in 1985 by a decision in which the Supreme Court found that drawing immunity boundaries around "traditional government functions" was unworkable and "inconsistent with established principles of federalism" [Garcia v. San Antonio Metro. Transit Auth., 469 U.S.. 528 (1985)]. A state now enjoys immunity from federal taxation if the tax is applied to either (1) unique state activities; or (2) essential governmental functions. Rule/State Engaging in a Propriety Business: Where a state engages in a propriety business (i.e., one similar in nature to a business operated by a private individual), then the state may be taxed to the same extent as a private individual 3. Authority Reserved for the States A. The Tenth Amendment Rule/10th Amendment: The Tenth Amendment provides that the "power not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The Tenth Amendment enables a state to regulate to regulate issues relating to health, safety, morals, and welfare, including economic welfare [Huron Portland Cement Co. v. City of Detroit, 352 U.S. 440 (1960) (A Detroit Smoke Abatement Ordinance that affected ships traveling in interstate commerce was upheld as a valid health measure)]. As a general rule, where the state regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits [Pike v. Bruce Church, Inc. 397 U.S. 137 (1970);]. Rule/Constitutional Limits on States: The constitution specifically prohibits any state from: (1) making treatises with other nations; (2) coining money; (3) passing a bill of attainder; (4) enacting an ex post facto law; (5) impairing the obligation of contracts; (6) laying any duty on imports or exports, except where necessary for excluding its inspection laws; (7) engaging in war; or (8) maintaining a peacetime army. Rule/Intrastate Real Estate Sales Transactions: The authority to enact laws regulating intrastate real estate sales transactions is not reserved exclusively to the states under the Tenth Amendment. Such transactions have a cumulative impact on interstate commerce and are subject to the federal commerce power. The Court has refused to use the Tenth Amendment to reserve subject areas of commerce for state regulation. Rule/Impairment of Contracts: In order to protect the health, safety, morals, and welfare of its citizens, a state may enact legislation that impairs contracts under certain conditions. The action of the legislature may be viewed reasonably as a permissible police modification so long as no prior contractual obligation has been impaired. B. The Dormant Commerce Clause Rule: The Commerce Clause gives Congress the power to regulate interstate commerce. Where Congress has not enacted legislation, the states are free to regulate local transactions affecting interstate commerce, subject to certain limitations. These limitations are generally known as the Dormant Commerce Clause, or the Negative Implications Doctrine. Rule/State Facially Discriminating Between In-State and Out-of-State Economic Actors: If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show that: (1) the regulation serves a compelling state interest; and (2) the regulation is narrowly tailored to serve that interest. If a state law incidentally burdens interstate commerce, the court will apply a balancing test an the law will be upheld unless the burden imposed on interstate commerce clearly outweighs to local benefits [Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). EXCEPTIONS: (1) Congress may affirmatively authorize states to legislate in areas that would violate the dormant Commerce Clause; and (2) When states act as market participants, they may discriminate between in-state and out-of-state businesses Rule/State Discrimination Against Out-of-State Residents: The Privileges and Immunities Clause under Article IV, Section 2 prohibits states from enacting legislation that discriminates against out-of-state residents. No state or municipality may deny citizens of other states any rights that it affords its own citizens without substantial justification. This applies only to individuals, not aliens, and corporations. The Dormant Commerce Clause is applicable to aliens, businesses and corporations, as well as individuals. as it deals with laws affecting interstate commerce. If a state regulation furthers no ostensible benefit and imposes a substantial burden on interstate commerce, it will likely be held unconstitutional. [Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959) (an Illinois statute requiring all trucks to be equipped with a new type of contour mudguards (instead of the flatguards permitted in all other states) was held unconstitutional because it placed an undue burden on interstate carriers); Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978) (a state law limiting the length of trucks traveling on state highways or trains rolling through the state is unconstitutional because the regulation unduly burdened interstate commerce, and the state failed to demonstrate and significant safety benefit); Hannibal & St. Joseph Railroad v. Husen, 95 U.S. 465 (1877); generally, public health measures (e.g., quarantine and inspection laws) are upheld so long as they do not discriminate against or unduly burden intestate commerce)]. 4. Reserved State Power in Taxation Rule/State Taxation of Interstate Commerce: As a general rule, state taxation on interstate commerce is permissible as long as the tax does not discriminate against or unduly burden interstate commerce. In determining the validity of a state tax affecting interstate commerce, the court will generally consider the following four factors [Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977): (a) there must be a substantial nexus between the activity taxed and the taxing state: (1) in other words, the taxpayer must have "sufficient contacts" or presence within the taxing state; (2) substantial nexus is more than minimum contacts under the Due Process Clause [e.g., the solicitation by mail and shipping of goods by common carrier or postal service, although enough to show minimum contacts, does not satisfy the substantial nexus requirement (Quill Corp v. North Dakota, 504 U.S. 298 (1983)]; (3) a regular operation within in a state, despite, owning no property, is enough to show "substantial nexus" - for example, an airline operating regularly scheduled flights from a rented station [Braniff Airways, Inc. v. Neb. Bd. of Equalization, 347 U.S. 590 (1954)]. (b) The tax must be fairly apportioned (1) the taxpayer has the burden of proving unfair apportionment; e.g., The S. Ct. invalidated an apportionment based upon track mileage within the state, as compared with total track mileage, which resulted in a disproportionate tax because the railroad had an unusually large amount of track in the taxing state [Norfolk & Western Railway v. Missouri Tax Commission, 390 U.S. 317 (1968)]. (c) The tax must not discriminate against interstate commerce; and (1) A tax favoring local commerce over interstate commerce will be invalided under the Commerce Clause unless it is authorized by Congress [Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946)]; (2) Article IV, Section 2 (the privileges and Immunities Clause) prohibits state taxes that discriminate against non-residents [Austin v. New Hampshire, 420 U.S. 656 (1975)]; (d) the tax must be fairly related to the services provided by the taxing state. Rule/Summary/State Taxation on Interstate Commerce: The state tax on interstate commerce is valid if: (1) it is not preempted by federal law; (2) it does not discriminate against interstate commerce; (3) it has a substantial nexus; (4) there is a fair apportionment and relationship. Various Types of State Taxes Rule/Ad Valorem Tax (according to value or added value): A tax whose amount is based on the value of the transaction or the property, it is typically imposed at the time of the transaction. States are not permitted to levy an ad valorem tax on goods that happen to be in the taxing state on the tax day if those goods are still in the course of transit. HOWEVER, the validity of such ad valorem property taxes as applied to instrumentalities of commerce (e.g., airplanes or railroad cars) depends upon: (1) whether there is a taxable situs (or nexus) within the state; and (2) whether the tax is fairly apportioned to the amount of time the equipment is in the state. Rule/Sales Tax: is a tax upon the transfer of title of goods consummated within the state. (1) If the sale is consummated within the state (even though the buyer takes the goods outside the state), a sales tax is valid. If, however, the sale is made to a buyer outside the state (i.e., the seller delivers the goods to an out-of-state buyer), then the sales tax is invalid. Rule/Use Tax: On the other hand, a use tax is a tax upon the use of goods within the state that were purchased outside the state. (1) The ability of a state to collect a use tax usually depends upon whether the interstate seller, who receives goods from outside the state, has a sufficient nexus within the taxing state. (a) where the seller maintains offices within the taxing state (or even sends salespeople into the state as employees or independent contractors), there is a sufficient nexus even though the use tax was imposed on interstate mail-order sales [National Geographic Society v. California Board of Equalization, 430 U.S. 551 (1977)]. (b) In contrast, if no sales office is maintained in the state and all selling is done by mail, there is not sufficient nexus with the taxing state to justify the collection of a use tax [National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967)]. Rule/Doing-business Taxes: (variously referred to as: privilege, occupation, franchise, license, gross receipts, or net income taxes) can be measured by either a flat annual fee or a graduated rate based in proportion on the amount of revenue derived from the taxing state. As a general rule, such taxes must relate to the benefits conferred by the taxing state upon the interstate business [e.g., a fee applied to airport users was held constitutional because it bore a reasonable relationship to use of the facilities by the passengers, Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U.S. 707 (1972)]. Rule/Net Income Taxes: may be applied by the state upon a company engaging in interstate commerce or on a non-resident engaged in business in the taxing state. A net income tax is valid only as long as the tax is fairly apportioned, has a significant nexus, and is nondiscriminatory [Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959)]. Rule/Flat License Fee: is generally unconstitutional. This is a fee levied by the state upon drummers, or solicitors who solicit local orders and then fill them out-of-state and ship them through interstate commerce [Nippert v. Richmond, 327 U.S. 416 (1946)]. Rule/License Tax: on a peddler, or itinerant salesperson, is valid when a state levies it upon a seller who actually sells and delivers the product within the state. A license is valid as nondiscriminatory only as long as the tax is fairly apportioned with an equal application to local salespeople.

Privileges and Immunities Clauses 1. Privileges and Immunities under the Fourteenth Amendment 2. Privileges and Immunities under Article IV, Section 2

1. Privileges and Immunities under the Fourteenth Amendment Rule/Privileges and Immunities under the Fourteenth Amendment: The Fourteenth Amendment provides that no state shall make or enforce any law which abridges the privileges or immunities of citizens of the United States. Rule/Protected Rights Under the Privileges and Immunities Clause: The S. Ct. ruled early on, in the Slaughter House Cases [83 U.S. 36 (1873)], that the Privileges and Immunities of national citizenship are the rights [Twining v. New Jersey, 211 U.S. 78 (1908)]: (a) to travel from state to state; (b) to petition Congress for redress of grievances; (c) to vote for national offices; (d) to enter public lands; (e) to be protected while in custody of U.S. Marshals; and (f) to assemble peaceably. Rule/Corporations and Aliens: Corporations and Aliens are not protected under the Fourteenth Amendment Privileges and Immunities Clause. 2. Privileges and Immunities under Article IV, Section 2 Rule/Privileges and Immunities under Article IV, Section 2/ Comity Clause: Sometimes referred to as the Comity Clause, Article IV, Section 2 provides: The Citizens of each state shall be entitled to all privileges and Immunities of Citizens in the several States. This clause prohibits states from discriminating against non-residents (based upon the fact that they do not resided in the state) with respect to rights and activities that are fundamental to the national union. Corporations and aliens are not citizens for purposes of the Article IV Privileges and Immunities Clause. Rule/Invalid Forms of Non-resident Discrimination: The following have been held invalid forms of non-resident discrimination: (1) A state statute requiring a nonresident commercial fisherman to pay a $2,500 license fee to fish offshore, while a resident fisherman paid only a $25 license fee [Toomer v. Witsell, 334 U.S. 385 (1948)]; (2) A commuter tax applied to non-residents who entered New Hampshire to work, while New Hampshire residents were exempt from the tax [Austin v. New Hampshire, 420 U.S. 656 (1975)]; (3) A state statute imposing residency requirements on women seeking abortion, which was held invalid because an individual has a fundamental right to seek medical care [Doe v. Bolton, 410 U.S. 179 (1973)]; and (4) a state law requiring employers to give hiring preference to state residents [Hicklin v. Orbeck, 437 U.S. 518 (1978)]. Rule/Valid Forms of Non-Resident Discrimination: The privileges and Immunities Clause does not protect a non-resident against all forms of discrimination. The following types of non-resident discrimination have been upheld: (1) A state statute requiring a non-resident to pay $225 for recreational hunting license, while a resident hunter paid only $9 license fee, because it is within the state's police power to regulate recreational, non-commercial activities [Baldwin v. Montana Fish and Game Commission, 436 U.S. 371 (1978)]; and (2) discrimination against non-residents will be given special consideration if its purpose is the preservation of natural, state-owned resources [Sporhase v. Nebraska, 458 U.S. 941 (1982)]. Rule/Triggers for Review: Discrimination against citizens or residents in regards to an essential economic right or liberty triggers Article IV Privileges and Immunities Clause, whereas general economic discrimination against a business or entity is more often viewed using Commerce Clause analysis.

Types of Action Governed by the Constitution 1. State Action versus Private Action 2. National Power to Override State Authority

1. State Action versus Private Action Rule/State Action Requirement: In order to show a constitutional violation either by the state or federal governments, the plaintiff must first show that there is governmental action, Constitutional rights can be violated only by government actors, not by private actors. This is called the state action requirement. In this context, state action is a term of art referring to government action either by the federal or state governments. Rule/Fourteenth and Fifteenth Amendments: The Fourteenth Amendment says, "No state shall make or enforce any law which abridge the privilege or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction equal protection of the laws. The Fifteenth Amendment prohibits the state and federal governments from denying the right to vote based on race. The Fourteenth and Fifteenth Amendments therefore prohibit governmental conduct, and not private conduct which infringes upon protected individual rights. Rule/Federal Violations of Constitutional Rights: Private actors cannot violate the Bill of Rights and other constitutional amendments that constrain the federal government. The federal government, but not private actors, can violate those individuals rights. EXCEPTIONS: There are two exceptions to the rule that constitutional rights can be violated only by governmental action. State action can be found in the actions of private actors under: (1) Public Function Theory: where a private entity is carrying on activities traditionally and exclusively performed by the government; or (2) Significant State Involvement, Endorsement, or Encouragement Theory: where the government and private entity are so closely related that the action by the private party fairly can be treated as action by the government. Rule/State Action/Public Function Theory/Company Town: In Marsh v. Alabama [326 U.S. 501 (1946)], a private company owned an entire town. A member of the Jehovah's Witnesses was arrested and convicted for violating the trespass law that made it a crime "to enter or remain on the premises of another." The S. Ct. reversed the trespass conviction because the town's streets, although privately owned, were the functional equivalent of city streets. The S. Ct. held that the company's actions were in violation of the First and Fourteenth Amendments because neither a state nor a private owner can totally ban the expression of free speech. The S. Ct. has ruled that the "company town" rationale did not apply to a privately owned shopping center [Hudgens v. National Relations Labor Board, 424 U.S. 507 (1976)]. Rule/State Action/Public Function Theory/Political Parties: In Smith v. Allwright [321 U.S. 649 (1944)], the S. Ct. held that because holding an election is a public function, a political party could not racially discriminate against blacks by excluding them from voting in a primary election. Rule/Significant State Involvement/Equal Protection: Were there is significant state involvement in private discrimination, the constitutional right of equal protection may be applicable. (1) A restaurant owner, whose business was located in a building owned by the city, was prohibited from discriminating against racial minorities. The Court found that there was a "symbiotic relationship" between the city and the restaurant [Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)]. (2) State court enforcement of restrictive covenants prohibiting the sale of property to blacks was held to involved sufficient state involvement so as to constitute state action [Shelley v. Kraemer, 334 U.S. U.S. 1 (1948)]. (3) HOWEVER, state action was not found in granting a liquor licenses to a private club that racially discriminated against blacks [Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)]. (4) More recently, the S. Ct. found state action because of the entwinement between a state and private organization that regulated interscholastic athletic competitions among public and private secondary schools [Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). (5) 42 Sec. U.S.C. 1983 provides citizens with the opportunity to seek redress against those who are acting under the authority of a state or local government, and denying citizens their constitutional and statutory rights. Rule/Thirteenth Amendment: (a) The Thirteenth Amendment prohibits slavery and involuntary servitude. The amendment has been interpreted as providing Congress with the power to pass legislation prohibiting badges and incidents of slavery, and thus can be used to proscribe purely private acts of forced labor without the requirement of state action. The Peonage Abolition Act of 1867 was designed to help enforce the Thirteenth Amendment and abolished the "voluntary or involuntary service or labor of any persons...in liquidation of any debt or obligation. (b) The Thirteenth Amendment to the United States Constitution applies to both state action and private action. It prohibits slavery and involuntary servitude, except as punishment for crime. (1) the phrase "involuntary servitude" can mean being compelled to work by the use of force, threat of force, or threat of legal coercion; (2) The U.S. S. Ct. has held that the nation's military draft does not violate the Thirteenth Amendment, but that law regarding peonage (involuntary service to work off a debt) do violate the Constitution. (3) The Second Circuit has ruled that community service required to graduate from high school does violate the Thirteenth Amendment. 2. National Power to Override State Authority Rule/Supremacy Clause: The Supremacy Clause provides that the Constitution, treaties, and laws of the United States are "the supreme law of the land." In general, a federal law will supersede any state law with which it is in direct conflict. Furthermore, Congress can preempt any state law in an area in which the exercise of federal power is Constitutional [U.S. Const. art. IV, Sec. 2]. (1) Where Congress does not intend to occupy a filed completely, and state laws are not otherwise preempted, the states may enact similar legislation [E.g., A statute prohibiting racial discrimination was held valid even though there was a substantially identical federal law (Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc. 372 U.S. 714 (1963)]. (2) Greater state protection is also permitted. Where Congress has legislated to establish minimum standards (such as in the areas of health and safety requirements pertaining to food and drugs or the regulation of roads and highways), then the states are free to enact more stringent standards than those mandated by federal law [e.g., A municipal smoke-abatement statute was held valid even though it imposed stricter standards than the federal regulation [Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960)].