Bar Exam: Constitutional Law

Article IV Privileges and Immunities Clause

(i) state and local governments cannot (ii) explicitly discriminate against out of state citizens as to (ii) important commercial activities or civil liberties - must be facially discriminatory - does not apply to corporations or aliens - regulation must meet strict scrutiny - NO exceptions

Mathews

(i) the importance of the interest to P and (ii) ability of additional procedures to increase the accuracy of fact finding against (iii) the government's interest in administrative efficiency and cost

substantive due process

- Due Process Clause of 5th applies to federal government - Due Process Clause of 14th applies to state and local - applies when regulation affects EVERYONE - two categories: fundamental right and non

presidential pardon power

- President may grant pardons for all federal offenses but not for impeachment or civil contempt - power cannot be limited by Congress

suits between US and states

- US can sue states without consent - states cannot sue US without consent - suits against public officer in official capacity not permitted but allowed if officer acted beyond his authority - states can sue each other without consent

abortion right

- before viability: regulations to protect mother's health or fetal life must not place undue burden on woman's right - after viability: government may prohibit all abortions unless the procedure is necessary to protect mother's life or health

establishment clause

- discrimination against religion or amongst must meet strict scrutiny - non discriminatory regulation must meet Lemon test: 1. serve secular purpose 2. primary effect must not advance or inhibit religion and 3. must not create excessive governmental entanglement with religious administration or bureaucracy - financial benefits must be neutral and matter of pure private choice - religious activity in public schools must not be sponsored by state but must be accommodated under equal access rule

taxing power

- federal tax valid if reasonable means to produce revenue or if congress has power to regulate the taxed activity - does not have to label it a tax construed as one if operates as tax, not punishment and collected by IRS through normal means of taxation - cannot tax exports to foreign countries

supremacy clause

- if state law conflicts with federal, state law invalidated - if state or local law prevents achievement of federal objective, invalidated

tax or regulation on state only

- may run afoul of 10th amd (but not likely answer) - can restrict activities that violate civil liberties - may indirectly regulate by imposing conditions on grant of money

freedom of the press

- same freedoms as private citizens - general regulations okay, specific ones targeting media or certain type of publication must pass strict scrutiny

campaign funding

1. cannot limit funding of own campaign 2. cannot limit independent expenditures 3. can limit contributions 4. can require disclosure of contributions 5. corporations have all the same rights

standards of review for media

1. content based subject to strict scrutiny regardless of type 2. content neutral: print, internet and cable tv- strict scrutiny 3. content neutral: radio and tv- intermediate

intentional discrimination

1. discriminatory on its face 2. patently discriminatory application 3. discriminatory motive (effect not enough)

regulation of symbolic speech

1. important purpose 2. unrelated to suppression of message and 3. burden no greater than necessary to achieve purpose

publication of unlawfully obtained material

1. information truthful and public concern 2. media did not obtain it unlawfully or know who did 3. original speaker had reduced expectations of privacy

associational standing

1. members would have standing by themselves 2. nexus between purposes of organization and vindication of right at issue and 3. individual member participation is not required

apply to all restrictions on speech

1. prior restraints subject to strict scrutiny 2. vagueness 3. substantial overbreadth 4. unduly discretionary

categories where subject matter regulation allowed and strict scrutiny doesn't apply

1. unprotected speech: incitement, fighting words, threats, obscenity, child porn, fraud 2. less protected speech: commercial speech, defamation 3. government funded speech

Youngstown framework

1. when President acts with express or implied authority of Congress, his authority at max and actions likely valid, 2. when President acts where Congress is silent, his action will be upheld unless it usurps the power of another governmental branch or prevents them from carrying out its tasks, 3. where President acts against express will of Congress he has little authority and his action likely is invalid (refusal to spend appropriated funds when Congress expressly mandated they be spent)

state sovereign immunity

11th prohibits federal courts from hearing private party's or foreign government's claims agains state government

power over citizenship

Congress can establish uniform rules for naturalization Congress must give resident aliens notice and hearing before deportation Congress cannot take way citizenship of any citizen without his consent

commerce power

Congress has exclusive power to regulate all foreign and interstate commerce including: - the channels of intestate commerce - the instrumentalities of interstate commerce and persons and things in interstate commerce and - activities that have a substantial effect on interstate commerce including intrastate economic or commercial activity if there is rational basis for concluding that activity in aggregate affects interstate commerce - non economic intrastate activity cannot be aggregated

Congressional powers over District of Columbia

Congress has police powers over D.C.

war power

Congress has power to declare war, raise and support armies and provide for and maintain a navy

property power

Congress has power to dispose of and make rules for territories and other properties of U.S.

necessary and proper clause

Congress has power to make all laws necessary and proper for executing any power granted to any branch of the federal government; works in conjunction with another federal power

congressional removal power

Congress may provide statutory limits (for cause) on President's power to removal non high level purely executive officers; can remove executive officers through impeachment only

spending power

Congress may spend to provide for the common defense and general welfare for any public purpose (but cannot directly legislate for general welfare) - may serve any legitimate public purpose - conditional grants in aid can indirectly regulate actives Congress cannot otherwise regulate if not unduly coercive - can withhold grants but not threaten to terminate others as condition

congressional appointment power

Congress may vest appointment of inferior officers in President, the courts or heads of departments but cannot itself appoint members of body with administrative or enforcement powers

full faith and credit

JUDGMENT entitled to full faith and credit in sister states if court had jurisdiction, judgment on merits and final

Essay Approach Issue Checklist

Justiciability Jurisdiction Scope of Powers State interference Individual Rights -State action -Due Process - Equal Protection -Takings -First Amendment

executive removal power

President can remove high level, purely executive officers at will without interference from Congress

presidential veto power

President can veto act of Congress directly or by failing to act within 10 days if Congress is not in session but cannot cancel only part and approve other parts

executive immunity

President has absolute immunity from civil damages based on any action he took within official responsibilities but no immunity for acts before taking office - aides who exercise discretionary authority in sensitive area may share in immunity

treaty power

President has power to enter into treaties with consent of two thirds of Senate; treaties are supreme law of land if they are self executing without Congressional implementation and conflicting state laws invalid federal law conflict- last in time prevails

executive privilege

President has the privilege to keep certain communications secret such as national security but if need demonstrated in criminal proceedings for information presidential communications will be available to prosecution

impeachment

President, VP all federal judges and other civil officers are subject to impeachment for treason, bribery, high crimes and misdemeanors; House conducts proceedings and requires majority vote, tried and convicted in Senate by two thirds vote

fighting words

abusive words, directed personally to hearer that are likely to produce immediate and physically violent reactions in average person - must still be viewpoint neutral, not vague, over broad or discretionary

original jurisdiction

all cases affecting ambassadors, public ministers, consuls and those in which a state is a party

appellate jurisdiction

all cases to which federal power extends subject to Congressional exceptions and regulations

anonymity

allowed for leafletting, pamphleteering and group membership, not allowed when signing petition

executive appointment power

appoints all ambassadors, other public ministers and consuls, justices of SC and all other officers of the US whose appointments are not otherwise provided for with advice and consent of Senate (Senate cannot force choices on President)

child pornography

can completely ban production, distribution, sale and possession of materials depicting actual minors even if not obscene; can punish advertising sale of child porn even if virtual children if represented it as real

taxpayer standing

can litigate her own bill but cannot challenge government expenditures because interest too remote unless attacking expenditures (not property or tax breaks) made pursuant to statute on First Amendment grounds

public emergency exception

can possess without paying compensation in cases of serious public safety or health emergencies

qualifications for Congress

cannot be altered by Congress or the states; in Constitution

free exercise

cannot punish or interfere with groups beliefs but can incidentally burden practices by general regulations of conduct exceptions? - denial of unemployment based on religious reason - religious education outside of public school system

possessory taking

confiscation, destruction, physical occupation

tax or regulation applying to states and private

congress may subject state and local government activities to regulation if law applies to both public and private sector

political questions

constitutionally committed to another branch or inherently incapable of judicial resolution

abstention

court will abstain from resolving constitutional claim when disposition rests on unsettled question of state law court will not enjoin pending state criminal proceedings except in cases of proven harassment

just compensation

fair market value AT TIME OF TAKING or damages for loss during taking that terminated; measure is loss to owner NOT gain to taker

takings clause

federal government/state government cannot take private property for public use without just compensation

alienage and EP

federal government: has plenary (exclusive) power over aliens, regulations subject to rational basis state or local governments: 1. resident aliens: strict scrutiny 2. resident aliens involving participation in self government or political functions such as voting, jury, elected office, officers, secondary and primary school teachers: rational basis - likely NOT university teachers so probably strict scrutiny 3. undocumented aliens: rational basis (but denial of public education to children invalid)

Supremacy Clause

federal law may supersede or preempt local laws; also prevents state control of federal government

liberty interest protected by PDP

freedom from bodily injury or physical restraint and freedom to exercise fundamental rights that have been impaired by intentional government action

incitement (three i's)

illegal conduct likely, imminent and intended by speaker creating "clear and present danger"

illegitimacy

intentional discrimination- intermediate scrutiny

gender

intentional discrimination- intermediate scrutiny; exceedingly persuasive justification not based on gender stereotypes and not developed for litigation

content neutral restrictions

intermediate scrutiny: serve important interest and must not burden substantially more speech than necessary

property interests protected by PDP

land and personal belongings and existing entitlements to a specific benefit under federal or state law for which there is a legitimate expectation that benefit will continue - reputation damage alone insufficient without showing other injury

discriminatory membership

laws forbidding discrimination invalid if they interfere with group's expressive activity but government does not need to subsidize discriminatory group on same terms as non discriminatory group

loyalty oaths

may require employees to take if not vague or over broad - oath requiring support of const okay, not support of flag

affirmative action based on race

must also meet strict scrutiny - compelling interest: remedying persistent discrimination affecting identifiable individuals and in public universities diversity within student body - no compelling interest in remedying general past societal discrimination - narrow tailoring: proportional to proven injury, flexible, time limited and not burdensome to innocent third parties

strict scrutiny

narrowly tailored to serve compelling government interest; government bears burden of proof

federal police power

no general police power but MILD police power over military bases, indian reservations, lands (federal) and DC

presidential war power

no power to declare war but may act militarily in actual hostilities against US without Congressional declaration

procedural due process

notice and a fair hearing before an unbiased decision maker

obscenity

obscenity is not protected speech, defined as: 1. describes or depicts sexual conduct that taken as a whole by average person 2. appeals to prurient interest in sex under community standard 3. is patently offensive using community standards 4. lacks serious value using national standard

state action

official conduct and private conduct whether there is significant governmental involvement with private party including: - state administers private trust - benefitting from private business with discriminatory policy located in public building - approves private practices after investigatory hearing - supplies books to segregated schools or gives direct financial aid - enforcing restrictive covenants

content based restriction

on subject matter or viewpoint (of protected speech) must meet strict scrutiny

irrational prejudice (animus)

per se irrational even under rational basis review

standing

plaintiff must show a personal (not generalized) injury that the defendant caused that can be redressed by the requested relief

ripeness

plaintiff not entitled to review of a statute before its enforcement unless plaintiff will suffer some harm and record adequate to make decision (mostly legal issues)

investigatory power

power of Congress to investigate is implied and must be expressly or impliedly authorized by appropriate congressional house

Eleventh Amendment

prohibits federal courts from hearing private party's or foreign government's claim against state government; allowed if - state expressly consents - prospective injunctive relief - damages against official in private capacity if state will not foot bill - Congress removes by creating cause of action under 14th

government employees

public employees or contractors cannot be fired or disciplined for expressing opinions in public as a citizen on matters of public interest unless the speech or association undermines the employer's authority or disrupts the employer's policies; statements made in official capacity within workplace not protected under 1st

defamation

public official/figure: actual malice, compensatory presumed/punitive, falsity private figure/public concern: negligence and actual injury, falsity private figure/private concern: unclear

public use

rational basis scrutiny- any conceivably legitimate government interest ex. condemnation upheld when land resold to private person to "revitalize" area

rational basis review

rationally related to legitimate government interest; challenge bears burden of proof

mootness

real controversy must exist at all stages of review; if already resolved, dismissed as moot UNLESS: - capable of repetition but evading review - voluntary cessation D is free to resume - class action- if rep's case moot, can still proceed if other claims still viable

regulatory takings

regulation leaves no reasonable economically viable use of property

commercial speech

regulation of truthful ads for lawful product or service subject to intermediate scrutiny - false or illegal ads unprotected speech

economic liberties & substantive due process

regulations of economic activities reviewed under rational basis

association for political activities

regulations subject to strict scrutiny

private contracts

reviewed under intermediate scrutiny

executive agreements

signed by President and head of foreign country not requiring consent of Senate; prevails over state law; loses to federal law

contract clause

state and local governmental regulations cannot substantially interfere with obligations of existing contracts; must affect essential terms; DOES NOT apply to federal government or contracts formed after regulation takes effect

state taxation/regulation of federal government

state may not directly tax federal instrumentalities without consent of Congress but nondiscriminatory indirect taxes are permissible if not unreasonably burdensome; states cannot regulate federal government or its agents while performing federal functions

true threats

statement that reasonable person would interpret as serious declaration of intent to murder or inflict harm

intermediate level scrutiny

substantially related to important government interest; government bears burden of proof

obscenity and minors

test adjusted for minors: 1. taken as a whole by minors 2. appeals to prurient interest in minors 3. patently offensive to minors 4. lacks value for minors

time, place, manner restrictions

traditional/designated public forums: content neutral, narrowly tailored to serve an important interest and leave open alternative channels of communication AND not over broad, vague, unduly discretionary limited/non public: viewpoint neutral, reasonably related to legitimate government purpose in reserving forum for intended use private property: reasonable regulations to limit access

association for illegal activities

unprotected and may be prohibited if government proves person: 1. actively participated in group 2. knowing of illegal activities 3. specifically intending to further those illegal activities

Gag orders

upheld if ONLY sure way of preserving fair trial for defendant; disfavored as a prior restraint

regulations that merely decreases value

use balancing analysis to weigh government's purpose versus decrease in value of property to owner with reasonable expectations in use

preemption

valid federal statute or regulation may expressly or impliedly occupy the entire field precluding state or local regulation even if nonconflicting - express clauses narrowly construed - presumption that historic state police powers not superseded unless clear and manifest purpose of Congress

specific process required

welfare: prior notice, prior hearing disability: prior notice and response, hearing after suspension from school: prior notice and response (if not dangerous), no hearing required for cause removal: prior notice and response, hearing after

public contracts

where government a party; reviewed under strict scrutiny; likely held unconstitutional as applied to government contract