Con Law

Congress passing law on Taxing and spending?

*Strongest Congress power, pick over commerce clause. Rational basis review = very weak standard Legit purpose behind law = fine Reasonably related to a legitimate interests. Congress Tax and Spends on general welfare.

UNPROTECTED AND PROTECTED SPEECH

- The "freedom of speech" protected by the 1A does not include certain categories of unprotected speech. - Two categories receive only partial protection under their own special test: defamation and commercial speech. - All other expression receives full 1A protection (column 3A).

1. Male-only hiring policy for firefighters. Standard? 2. Written test for hiring police officers on which minorities consistently scored lower, and strong evidence that test was employed to exclude minorities. Standard? (Cf. Davis, 1976) 3. State law granting hiring preference to veterans, which disadvantaged women since most veterans were men. No evidence of discriminatory intent against women. Standard? (Feeney, 1992)

1. Intermediate 2. Facially neutral, discrim impact based on race, strong evidence = Strict Scrutiny because race 3. Rational basis = veteran classification status - facial classification.

1. Calling someone in bar argument a mother f***** to their face. Protected? 2. Wearing jacket in hallway of courthouse that says "F*** the Draft." Protected? (Cohen, 1971)

1. No - likelihood that it would promote an immediate response. 2. Yes - not directed and is political speech

1. Suspension for wearing black armband in class without incident to protest war. Valid? (Tinker, 1969) 2. Suspension for passing notes in class. Valid? 3. Censorship of newspaper article about student pregnancy for high school journalism class that school deemed age-inappropriate. Valid? (Hazelwood, 1988) 4. Suspension for "Bong Hits 4 Jesus" banner at Olympic torch run in front of school. Valid? (Frederick, 2007)

1. No - no disruption - entitled to exercise rights. 2. Yes - substantially disrupts the class 3. Yes - not the students personal speech but product of the class/schools speech - just needs to be reasonable 4. Valid - promotes illegal drug use. not political in nature.

1. State law entitles only women to alimony upon divorce. Valid? (Orr, 1979) 2. State military school excludes women on ground they would not be able to satisfy physical requirements or succeed under its "adversative method." Valid? (Virginia, 1996) 3. Selective Service Act requires males but not females to register for draft. Valid? (Goldberg, 1981)

1. No - this is based on a gender stereotype - not good justification. 2. Not valid - because not based on real evidence - its based on role stereotype. 3. Yes - SC makes exception that congress has power to raise armies and its there power to do so.

1. Federal law sets minimum wage at $7.25/hr. State law sets minimum wage at $15/hr. Preempted? 2. Federal law sets minimum wage at $7.25/hr. State law sets minimum wage at $5/hr. Preempted? 3. Federal law delegates to Department of Labor exclusive authority to set minimum wage. Department sets at $7.25/hr. State sets at $15/hr. Preempted? 4. Federal law encourages reporting of employment discrimination complaints to federal agency. State law denies unemployment benefits to those who do. Preempted? 5. Congress extensively regulates entry requirements for foreign nationals. Border state imposes additional requirements for entry. Preempted?

1. No express pre, no implied because both can be followed. 2. Yes, fed set a floor and states cant go below. 3. Yes. Even though states can go higher but here there is expressed preemption. 4. Yes. it frustrates the fed law for reporting. 5. Yes - feds regulate the field.

1. Arson. Speech? 2. Flag burning. Speech? 3. Ballet. Speech? 4. Nude dancing. Speech? 5. Ordinary clothing. Speech? 6. Black arm band. Speech?

1. No, if not intended to send message 2. Yes - inherint expressive. 3. Yes - tells a story 4. Yes - intends a message 5. No - usually for functional reasons 6. Yes - clearly speech

1. Designating Grand Central Station a landmark prevented proposed (but not all) upward expansion. Taking? (Penn Central, 1978) 2. New zoning ordinance prohibited owner from building on beachfront lot. Taking? (Lucas, 1992) 3. Moratorium prohibited development for 32 months pending completion of comprehensive land-use plan. Taking? (Tahoe-Sierra, 2002)

1. No, they can still sell the air rights. Govt can preserve landmarks. 2. Yes, Total and permanent band deprived the owner and reduced the total economic value. Worthless 3. No because it was only temporary. Not all economic use deprived.

1. Ban on clergy holding public office. Valid? (McDaniel, 1978) 2. Ban on animal sacrifice except for hunting or in kosher facilities. Valid? (Lukumi, 1993) 3. Ban on underage drinking. Valid? (Cf. Smith, 1990)

1. Not valid - facially discriminates based on religion. No compelling interests. 2. Not valid - targets specific religious practice. Not least restrict method. 3. Valid - neutral law and applies to everyone.

1. Injunction against publication of "Pentagon Papers" based on speculative harm to war effort. Valid? 2. Injunction against publication of D-Day week before attack. Valid?

1. Not valid because it is a content based restraint - strict scrutiny - no compelling interests 2. Valid- important interests in protecting the info

strict scrutiny (Fundamental Rights) List the three categories:

1. Privacy Rights: Contraception **Abortion - Undue Burden Test - Post Viability (fetus is viable). Marriage Procreation Education Relations / Family **Sexual Contact 2. Right to Travel 3. Right to Vote

1. Burning cross at KKK rally. Protected? 2. Burning cross in black neighbor's yard. Protected? (Black, 2002)

1. Protected - it is a political symbol. 2. No - direct threat.

1. Ban on overnight sleeping in parks. Forum? Restriction? Valid? (Clark, 1984) 2. Ban on political signs in courtroom. Forum? Restriction? Valid?

1. Valid - Traditional forum, content neutral, unrelated to speech. Govt has important interests - safety and narrowly tailored. 2. Valid. Limited public forum, limited speech and speakers --- Ban is content based, not viewpoint because it bans all. Reasonable review -

1. Ban on deceptive trade practices, including false or misleading ads. Valid? 2. Ban on attorney in-person solicitation for pecuniary gain. Valid? 3. Ban on accountant in-person solicitation for pecuniary gain. Valid? 4. Ban on truthful price advertising. Valid? (VA Pharmacy, 1976; 44 Liquormart, 1996) 5. Compelled disclosure of prescription drug side effects. Valid?

1. Valid - ban on deceptive trade practices is a band on unprotected commercial speech - state can cover 2. Valid - Protected commercial speech - State interest is consumer protection from attorneys soliciting. Narrowly tailored to help people. 3. No - nothing false or misleading about an accountant trying to sell services and not important interests for the state to regulate. 4. No - no important state interests to ban this speech 5. Valid - to state has important interests in protecting consumers

1. Ban dirty jokes at workplace. Valid? 2. Fire prosecutor for reporting suspected police perjury to superior as required by office policy. Valid? (Ceballos, 2006) 3. Fire teacher for letter to editor criticizing school spending. Valid? (Pickering, 1968) 4. Fire state employee for water cooler comment that President should be impeached. Valid? (Cf. Rankin, 1987) 5. Fire high school teacher for social media posts (e.g., cat photos) that are not harmful to functioning of workplace. Valid? (But cf. nude selfies; Roe, 2004)

1. Valid to fire- private concern at work place 2. Valid to fire - officer is speaking as apart of his job. 3. Not valid to fire - she is speaking as a citizen, speech is valuable. Dose not interfere with her job. 4. Not valid to fire, speaking on a matter of concern, does not disrupt work place. 5. Not valid to fire - speech is on private concern, outside work place.

1. Government construction of dam permanently flooded private property. Taking? (Pumpelly, 1872) 2. Temporary downstream flooding by Army Corps of Engineers to ease unusually heavy upstream storm water buildup. Taking? (Cf. Ark. Game, 2012) 3. Regular military flights over chicken farm at low altitude scared chickens to death. Taking? (Causby, 1946) 4. Apartment owners required to have small space available for cable TV equipment. Taking? (Loretto, 1982) 5. Government destroyed oil facilities to prevent them falling into enemy hands during WWII. Taking? (Caltex, 1952)

1. Yes 2. No, no permanent damage, govt intent was not to take away the property. One time deal. 3. Yes - Govt essentially destroyed the chicken farm. 4. Yes, cable is a modern convenience and need to pay for 3rd p use of your property. 5. Not a taking, this isnt a war compensation clause. govt can compensate but dont have to.

1. State regulatory agency temporarily bans disposal wells for fracking wastewater following epidemic of earthquakes in surrounding area pending study of causation. Valid? (Cf. Keystone, 1987) 2. City retroactively reducing reimbursement rate for contractors' travel expenses. Valid?

1. Yes - Govt has a legit purpose, and means are temporary. 2.No - there is self dealing. Signed contract and then goes back to get better deal.

School integration 1. Busing pupils on racial basis to remedy effects of past legalized segregation in district. Valid? 2. Busing pupils to integrate or diversify schools beyond remedying effects of past legalized segregation in district. Valid? (Parents Involved, 2007) Affirmative Action (Higher Education) 3. Public law school uses race as one of many factors in holistic admissions review to achieve critical mass of minorities and obtain benefits of diverse student body. Valid? (Grutter, 2003) 4. Public college assigns fixed points on admission scale for race to help reach same goal. Valid? (Gratz, 2003)

1. Yes - compelling interests remedying past segregation - undue past injury. 2. No - not compelling interests in remedying past. Race base busing is too broad to the purpose. 3. Yes - compelling interest in building diverse student body. It is narrowly tailored to promote diversity by considering race as one aspect in the whole. 4. No - use race as sole determine factor. - not narrowly tailored.

1. Inmate suing to change prison conditions completes sentence. Moot? 2. Pregnant woman challenging abortion restriction delivers. Moot? 3. Strip club that city sought to close closes, and owner retires. Moot?

1. Yes - he no longer suffering on going injury under the conditions because he is free. 2. No - because the injury is capable of repetition and evades review because its limited duration. Exception. 3. No - because D ceased but could reopen. D would have to do more for it to be moot - like sell business or move away.

1. Social Security formula entitles women to greater benefits to remedy long history of pay discrimination. Valid? (Webster, 1977) 2. Statutory rape law only makes men liable. Valid? (Michael M., 1981)

1. Yes - narrowly tailored to remedy gender pay gap. 2. Yes - not based on gender stereotypes (protect vulnerable sex). There is a biological disincentive for females to have sex (pregnancy) to balance this issue.

1. State court enforcement of racially restrictive covenant. State Action? (Shelley, 1948) 2. Officer targets minorities contrary to policy. State Action? 3. State leases premises to restaurant that racially discriminates. State Action? (Burton, 1961) 4. State grants liquor license to private club that racially discriminates. State Action? (Moose Lodge, 1972) 5. NCAA, voluntary association of public and private universities that regulates collegiate sports, ordered firing of state college coach. State Action? (Tarkanian, 1988) 6. Voluntary association of mostly public and some private high schools, and run mainly by public school officials during school hours, regulates sports within the state. State Action? (Brentwood, 2001)

1. Yes - private contract depends on the state enforcement of contract. 2. Yes - state official is a state actor can sue for violating con rights. 3. Yes - state is landlord and controls the property in close way. 4. No. state is just a general regulator. No close enough state supervision. 5. No - just because some are state actors does not mean the org is the govt. 6. Yes- Most member were public schools and board members were govt actors. This is state action.

1. Urging KKK members at rural rally to take "revengence" if government continues oppressing the white race. Protected? (Brandenburg, 1969) 2. Urging angry KKK members in front of black rape suspect's home to "take action." Protected? 3. Urging antiwar protesters being cleared from street by police to "take the f**ing streets later." Protected? (Hess, 1973)

1. Yes, because it is conditional 2. No, because action is an immediate threat. 3. Yes, "later" no immediate

1. Doctor challenging abortion law raising claim of patient. Standing? (Carhart, 2000) 2. Non-custodial parent without decision-making authority challenging flag salute on behalf of child. Standing? (Newdow, 2004)

1. Yes. Dr. has close relationship and is also damaged. Patients unlikely sue due to limitations of term. Dr. can show she can represent interests of patients. 2. No. Parent does not have custodial relationship and does not have decision making power.

1. Ban on discrimination at hotels and restaurants. IC? (Heart of Atlanta, 1964) 2. Ban on local cultivation and use of marijuana. IC? (Cf. Raich, 2005) 3. Criminal ban on domestic violence against women. IC? (Cf. Morrison, 2000) 4. Criminal ban on possessing gun within 1000 ft of schools. IC? (Lopez, 1995) 5. Criminal ban on possessing gun within 1000 ft of schools in connection with drug trafficking. IC? 6. Mandate to purchase individual health insurance. IC? (Sibelius, 2012)

1. Yes. Even if it happens local, if you add up in aggregate it creates big problem. 2. Yes. If everyone does it, it effects the market. 3. No. Falls outside because it is a non-economic activity and traditionally regulated by state (not a fed level). 4. No. Having a gun is a non-economic activity and traditionally regulated by State (schools) 5. Yes. Added drug trafficking is economic activity. 6. No. Can not force activity.

1. NAACP challenging law compelling disclosure of group membership, raising association rights of members. Standing? (NAACP v. Alabama, 1958) 2. Publisher of obscene website challenging Internet indecency ban on behalf of those with non-obscene websites. Standing? 3. Publisher of obscene website challenging ban on indecent commercial websites on behalf of non-obscene websites. Standing?

1. Yes. Org would be injured and so would the members. Org can show the injury is related to the purpose of the org. Member participation is not needed because its a legal Q. 2. Yes. Free speech over breath doctrine. Law sweeps beyond speech that is protected. 3. No. Its a commercial speech reg and there is no 3rd standing.

1. State supreme court finds search violates both Fourth Amendment to U.S. Constitution and independently interpreted provision of the state constitution. IASG? 2. State supreme court finds search violates both Fourth Amendment to U.S. Constitution and parallel state constitutional provision that incorporates federal law. IASG? 3. State supreme court denies review of appeal under procedural rule only applied against blacks. IASG?

1. Yes. SC wont review because State court found search violated con and state con. Any remand from SC would still result in search violating state law. 2. No. SC can review because state court said state con law is parallel (not independent from con law). SC opinion would have an affect on the state law. 3. No. SC can review. Typically state procedure laws are IASG but here the state court discriminatory applied.

1. You sue your state to enjoin home getting bulldozed. Barred? 2. You sue state director of transportation to enjoin home getting bulldozed. Barred? 3. Rodney King sues LAPD for excessive force. Barred? 4. You sue state under federal antidiscrimination law for firing you on racial grounds. Barred?

1. Yes. You sued the state - no exceptions. 2. No. You can suit state officals 3. No. Because sued local government. 4. No. If the federal law created that action. Congress created under 14th.

1. Confiscation of property in blighted area for sale to private company as part of city's economic redevelopment plan. Public use? (Kelo, 2005) 2. Breakup of property from oligopoly of landholders for resale to remedy economic and social evils from concentration of land ownership. Public use? (Midkiff, 1984)

1. Yes= it is because it is to increase the economics which benefits economics for public. 2. Yes = public use is anti-trust issue (market failure).

1. Ban on flag burning. Content based? Valid? (Johnson, 1993) 2. Burn ban during dry summer. Content based? Valid? 3. Burn ban throughout year in Seattle. Content based? Valid?

1. content based - not valid 2. not content based - content nuetral(its banning other activities, doesn't just target speech). Important state interest and narrowly tailored -dry summer season. 3. No content base - not valid because it not narrowly tailored.

Regulatory Taking

Bright-line rule: Taking if regulation on use does not merely diminish property value but leaves no economically viable use. (Lucas, 1992) Ad-hoc analysis: Maybe (but difficult to claim) a taking considering: - economic impact of regulation, - interference with investment-backed expectations, and - character of government action. (Penn Central, 1978)

For each fact pattern, select one of the following choices: Plaintiff is likely to i. lose under both DCC and P&I. ii. win under DCC but not P&I. iii. win under P&I but not DCC. iv. win under both DCC and P&I. 1. State law prohibits sale of out-of-state milk at price lower than in-state milk. Out-of-state dairy farm sues. 2. Oklahoma bans transport and sale of in-state minnows out of state. Texas bait company sues. 3. California bans gas-guzzling SUVs. Michigan manufacturer sues. 4. Illinois alone requires trucks to use curved mud guards, which confer no clear safety benefits. Out-of-state trucking company sues. 5. Texas charges out-of-staters substantially more than in-staters for commercial fishing license. Out-of-state U.S. citizen sues. 6. City requires its contractors employ 50% residents. Out-of-state U.S. citizen sues. 7. State restricts contraceptive sales to residents. Out-of-state U.S. citizen sues. 8. State charges out-of-staters more than in-staters for college. Out-of-state U.S. citizen sues.

1. ii DCC discrim out of state over instate. P&I not us citizen 2. ii DCC discrim out of state over instate - there is less restrictive. P&I us citizen 3. i - DCC neutral against all. P&I not us citizen 4. ii - DCC not discim law - sub burden on commerce. P&I not us citizen. 5. iv. DCC discrim out of state in-favor of instate. P&I right P and right claim (burden income) 6. iii. DCC discrim out of state but it is the city is a market participate - can favor instate. P&I out of state citizen and claim is right. 7. iv. DCC - discrim out of state burdens right to buy - no important state interests. P&I out of state and fundamental right (contraception). 8. i. DCC - state is market participant of selling edu. P&I right P but wrong claim because edu is not comerce nor fundamental right.

Federalism

5.1 TENTH AMENDMENT Powers not granted to United States, or prohibited to the states, are reserved to the states or the people. -General Police Powers: reserved to states. -Local health, safety, and economic regulations receive rational-basis review unless they burden a fundamental right or (quasi-)suspect class. - Anti-Commandeering Principle: Congress cannot compel states to enact or administer federal programs. EXAMPLES Requiring states to enact environmental regulations. (New York, 1992) Requiring local law enforcement to conduct background checks for federal handgun law. (Printz, 1997) Banning states from legalizing sports gambling (Murphy v. NCAA, 2018) Not commandeering: non-coercive spending conditions.

As an aide to a member of the Congress of the United States, you are expected to provide an analysis of the constitutionality of proposed legislation that your employer is called to vote on. A bill has been proposed that would create a mandatory price schedule for every motor vehicle sold in the United States. Which of the following should you tell your employer is the strongest constitutional basis for the proposed legislation? (A) Because the purchase or sale of a motor vehicle, by definition, involves commerce, the federal government may regulate such transactions under the commerce power. (B) All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce. (C) Congress has the power to regulate transportation in the United States. (D) Congress has the power to legislate for the general welfare of the people of the United States.

A - is wrong because to broad. Must involve interstate commerce. B- Great -based in terms of substantial effect prong. C. Too broad. D. Congress cannot regulate for the general welfare. They can spend but can directly regulate.

A state statute prohibits merchants from selling goods manufactured in a foreign country unless the merchant clearly marks the goods with their country of origin. The United States has a treaty with a foreign country that allows each country to import and sell goods and products from the other country. If a person is prosecuted under the state law for refusing to mark goods as being of that foreign country's origin, which of the following statements reflects the most likely outcome of the case? (A) The person will be found guilty because the treaty with the foreign country is no defense to a criminal prosecution in state courts for violating state laws. (B) The person will be acquitted, but only if the treaty with the foreign country preceded the state statute in point of time. (C) The person should be acquitted because the state statute is preempted. (D) The person will be found guilty because the treaty is no defense to the criminal prosecution in the absence of effectuating legislation by Congress.

A. wrong - any state laws that conflict cant be enforced. B. Doesnt matter when state law enacted. C. Yes -Fed treaty trump state laws and make them invalid. State law hinders fed treaty. D.wrong

Abortion Privacy Rights (Fundamental Rights) Strict scrutiny

Abortion: Not a normal strict scrutiny analysis -Pre-viability: (not developed fetus) State can regulate mother & fetus health but cannot "undue burden" or "substantial obstacle" to abortion right. -Post-Viability: (Late term, fetus viable outside): state interests in fetus's life overrides woman's right to abortion, but state cannot stop abortion if it is necessary to protect woman's health or safety. Remedy: do not invalidate in it entirety, court should fashion narrow declaratory and injunctive relief against unconstitutional application. Financing: government has no obligation to pay for abortion.

RETROACTIVE LEGISLATION CONTRACT CLAUSE -Private Contracts -Public Contracts

"No State shall . . . pass any . . . law impairing the Obligation of Contracts." Applicability - State and local laws only. Not - Federal government. - Judicial decisions. Tests Private Contracts: Substantial impairment of existing rights invalid unless: - legitimate or significant purpose, AND - reasonable or appropriate means Public Contracts:Heightened scrutiny (intermediate or strict scrutiny)

Dormant Commerce Clause

("Negative Commerce Clause") prohibits state laws that discriminate against or unduly burden interstate commerce. Who it Protects: all out-of-staters What Protects: interstate commerce Test: Discriminatory laws (favoring in-state over out-of-state commerce) are invalid unless: necessary to achieve important gov purpose (unrelated to economic protectionism), and no less discriminatory alternatives. Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are valid unless burden on IC clearly outweighs non-protectionist benefits. Exceptions: congressional approval market participant

PRIVILEGES & IMMUNITIES OF ARTICLE IV (4)

("The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States") prohibits state laws that discriminate against out-of-state U.S. citizens re: - important commercial activities (earning livelihood), or - fundamental rights. Who it Protects: U.S. citizens (NOT aliens or corporations) What Protects: - important commercial activities - fundamental rights Test: Discriminatory laws (favoring in-state over out-of-state citizens) are invalid unless: necessary to achieve important gov purpose, and no less discriminatory alternatives.

A procedural due process violation is most likely to be found where: (A) A judge with a personal financial interest in a case refuses to recuse himself (B) A deputy sheriff's negligent act causes injury to a prison inmate (C) A new state law prospectively changes the requirements for a driver's license so that some new drivers will no longer qualify for a license

(A) A judge with a personal financial interest in a case refuses to recuse himself Not a neutral decision maker

Two adult males set up a tent in a remote and secluded overnight camping area of a state park. A park ranger who happened to be in the area heard them engaging in sexual relations and pulled open the tent flap and arrested them. They were charged and convicted under the state's century-old anti-sodomy statute, which the state still enforced. If the defendants appeal to the state appellate court claiming a violation of their constitutional rights, what should the court do? (A) Reverse the conviction, because the defendants' due process rights were violated when they were arrested in the secluded park area. (B) Reverse the conviction, because consenting adults are free to engage in sexual activity. (C) Uphold the conviction, because the United States Constitution provides no right to engage in sodomy in a private setting. (D) Uphold the conviction, because the defendants were in a state park, a public area.

(A) Reverse the conviction, because the defendants' due process rights were violated when they were arrested in the secluded park area.

Under the Due Process Clause, the following government acts are considered deprivations of liberty except: (A) Denial of the right to engage in gainful employment (B) Defamation without a tangible loss (C) Loss of a freedom provided by the Constitution (D) Denial of the right to vote

(B) Defamation without a tangible loss

A city adopted an ordinance providing that street demonstrations involving more than 15 persons may not be held in commercial areas during "rush" hours. "Exceptions" may be made to the prohibition "on 24-hour advance application to and approval by the police department." The ordinance also imposes sanctions on any person "who shall, without provocation, use to or about someone and in his presence, opprobrious words or abusive language tending to cause a breach of the peace." No court has as of yet interpreted the ordinance. Which of the following is the strongest argument that both parts of the ordinance are facially unconstitutional? (A) No type of prior restraint may be imposed on speech in public places. (B) Laws, regulating by their terms expressive conduct or speech, may not be overbroad or unduly vague. (C) The determination as to whether public gatherings may be lawfully held cannot be vested in the police. (D) The right of association in public places without interference is ensured by the First and Fourteenth Amendments.

(B) Laws, regulating by their terms expressive conduct or speech, may not be overbroad or unduly vague.

To combat rising insurance rates, a state formed a state-owned insurance company that operated exclusively within the state. The company provided insurance on the basis of premiums calculated according to a schedule of fees. Under the schedule, premiums for residents of a particular city were 25% higher than the premiums for any other municipality in the state. Forty percent of that city's residents were of Mexican descent compared with a state-wide Mexican-American population of approximately 15%. A Mexican-American citizen living in the city brings suit, alleging that the state insurance company's rate structure violates the Equal Protection Clause. Will the citizen's suit prevail? (A) Yes, because the higher rates have the effect of discriminating against the Mexican-American population. (B) Yes, unless the state insurance company shows a compelling reason for the discrimination. (C) No, unless the citizen shows that Mexican-American citizens pay higher rates than similarly situated non-Mexican-American citizens of that city. (D) No, because discriminatory economic regulations are not a suspect classification.

(C) No, unless the citizen shows that Mexican-American citizens pay higher rates than similarly situated non-Mexican-American citizens of that city.

A man who belonged to an ancient religion whose rituals require the use of bald eagle feathers traveled to an area where bald eagles were known to roost. After searching the area, he found a fallen eagle feather and returned home. A few weeks later, the man showed the feather to an acquaintance, who happened to be a state park ranger, and explained how the feather was obtained. The ranger informed the man that a state anti-poaching law makes any possession of a bald eagle feather without a special permit a crime. The ranger then cited the man for possession of the feather and confiscated it. At the man's trial for violating the state bald eagle feather possession statute, which of the following constitutional arguments is most appropriate for the prosecution to make? (A) The government has a substantial and important interest in protecting bald eagles and there is no other feasible way to achieve the legislative purpose. (B) The Free Exercise Clause applies only to belief and not to conduct. (C) The statute is a neutral law that only incidentally burdens the man's rights under the First Amendment. (D) Making an exception for the man on religious grounds would violate the Establishment Clause of the First Amendment.

(C) The statute is a neutral law that only incidentally burdens the man's rights under the First Amendment.

The state legislature enacted a statute authorizing all state agencies having legal departments or employing lawyers to subscribe to a specific computerized legal research service provided by a legal research corporation. A contract was duly entered into between the state and the corporation. Before the corporation could begin installing the necessary equipment in state offices, it was revealed that the state university system had exhausted its budgeted resources and would not be able to operate without additional money. The legislature then repealed the statute authorizing use of the computer legal service and reallocated these funds to the university. In an action by the corporation against the state to enforce the contract, how should the trial court rule regarding the repeal of the statute? (A) The repeal of the statute is valid, because the sovereign may not constitutionally be sued without its own consent. (B) The repeal of the statute is invalid, because the state is equitably estopped to renounce a valid bid it has accepted. (C) The repeal of the statute is valid, because the legislature has constitutional power to repeal its own enactments. (D) The repeal of the statute is invalid, because it violates the constitutional prohibition against impairment of contracts.

(D) The repeal of the statute is invalid, because it violates the constitutional prohibition against impairment of contracts.

Education Privacy Rights (Fundamental Rights) Strict scrutiny

Cannot limit right to private education State may not require public school education or education in English. (Pierce, 1925; Meyer, 1923)

Causation and Redressability (JP)

Causation Plaintiff must show that the injury is fairly traceable to the defendant. EX. No causation where parents of black public schoolchildren challenged IRS failure to deny tax breaks to discriminatory private schools, claiming breaks caused public schools to be less integrated. (Allen, 1984) Redressability Plaintiff must show that a favorable court decision can remedy the harm (e.g., through money damages or an injunction). EX. No redressability where mother challenged state's failure to prosecute for non-payment of child support, claiming loss of child support from lack of prosecution. (Linda R. S., 1972)

Third Party Standing (JP)

Close Relationship: (parent child). Plaintiff and third party injured. 3P unable or unlikely to sue. Plaintiff can adequately represent 3P. Organizations (on behalf of members): - Organization and members have standing. - Members' injury related to purpose of organization. - Members' participation not required (e.g., not seeking individualized damages). Free Speech Overbreadth (party whose speech can be censored sues on behalf of those whose speech cannot) - Substantial overbreadth in terms of law's legitimate to illegitimate sweep. - Not commercial speech.

14A Enforcement Power (LP)

Commerce power allows Congress to indirectly ban private discrimination. Congress may directly ban state discrimination under its 14A power to enforce the guarantee of equal protection. EXAMPLE Congress may authorize private suits against state governments for employment discrimination on basis of race, gender, and religion. (Bitzer, 1976, Title VII)

Alienage (Non-Citizen Status) - Congressional Classification - State and Local Classification

Congressional Classification Test: rational basis. State and Local Classification Test: strict scrutiny. EXAMPLES State and local governments may not require U.S. citizenship for employment (generally), government benefits, property ownership, or admission to bar. Exception: State and local governments may reasonably require U.S. citizenship for activities and positions integral to democratic self-governance. EXAMPLES Voting, holding elective office, being police officers or public school teachers. Not: notaries public.

Contraception Privacy Rights (Fundamental Rights) Strict scrutiny

Contraception: state cannot prohibit distribution of non-medical contraceptives. Ban on distribution and use of contraceptives, or limiting sale to pharmacist, is invalid. (Cf. Griswold, 1975; Carey, 1977)

IIED (and other torts)

Court has required actual malice for recovery under intentional infliction of emotional distress and other torts, at least where plaintiff is public figure or public official, or speech is on matter of public concern. EXAMPLE No IIED or other tort recovery against Westboro Baptist Church for funeral picketing even if political and religious messages (e.g., "Thank God for Dead Soldiers") were "outrageous." (Snyder, 2011).

DUE PROCESS AND/OR EQUAL PROTECTION

Denying everyone a fundamental right - Substantive Due Process only Denying some a fundamental right - Substantive Due Process and - Equal Protection

Equale Protection Determing Classification -Facial -Disparate impart and Discrimato

EXAMPLES Facial gender classification: law expressly taxes income of women at higher rate than men. Non-facial gender classification: law taxes income of shorter individuals at higher rate, AND emails expose purpose to discriminate against women.

Strict Scrutiny

Ends: compelling state interest Means: narrowly tailored (least restrictive) Burden: state Presumption: invalid

Intermediate Scrutiny

Ends: important or significant state interest Means: narrowly tailored (substantially related or close fit, not least restrictive) Burden: State Presumption: none

Rational Basis

Ends: rational or legitimate interest Means: rationally or reasonably related Burden: challenger Presumption: valid

Equal Protection Clause 14th? 5A? trigger? Analysis? Classification?

Entitlement to equal protection under the laws. 14A Equal Protection Clause applies to states (and localities). 5A Due Process Clause has "Equal Protection component" that applies to federal government. TRIGGER Government treating people differently. Equal Protection Analysis 1. Classification 2. Level of Review Determining Classification Facial, OR Disparate impact AND discriminatory intent

Substantive Due Process Enumerated rights & Unenumerated rights

Enumerated rights are specified in the Constitution or Amendments (e.g., "the freedom of speech"). Unenumerated rights are substantive component of liberty protected by - 14A DP Clause against states and localities. - 5A DP Clause against federal government. An enumerated or unenumerated right is fundamental if it is - Deeply rooted in this Nation's history and tradition, - Implicit in the concept of ordered liberty, or - Identified as fundamental by reasoned judgment and new insight. Most rights in Bill of Rights have been deemed fundamental.

Right to Travel Right to travel (Fundamental Rights) Strict scrutiny

Equal treatment once become resident of state. Individual has fundamental right to migrate from state to state and to be treated equally after moving to new state. One-year residency requirement for non-emergency medical care at county's expense impermissibly burdened right to travel between states. (Memorial Hospital, 1974) 1 year residency for welfare = invalid 1 year residency for subsidized medical care = invalid 1 year residency to vote in state = invalid 30 day to vote in state = Valid 1 year residency to get divorced = valid International travel is not a fundamental right. - is protected by 5thA our process clause, rational basis standard.

TAKINGS

Federal government (5A Taking Clause) and states (14A DP) may not take private property unless: Takings Requirements 1. Public use 2. Just compensation • Real personal property (including rights to possess, use, dispose, etc.) • Some intangible property Interest on attorney trust accounts, trade secrets. Not: welfare benefits. Physical Taking Confiscation Regular or permanent occupation - Temporary occupation: may be takings (depending on degree of invasion, duration, government intention and foreseeability with respect to result, character of property and interference with use, Arkansas Game and Fish Comm'n, 2013) - Development Exception: traditional conditions on property development (e.g., streets, utility easements) are not taking if benefits are roughly proportional to burdens. - Emergency Exception: taking less likely to be found, even for complete and permanent deprivation, if pursuant to public emergency such as war.

Procedural Due Process State? Federal Government?

Fourteenth Amendment Due Process Clause applies to states (and localities). Fifth Amendment Due Process Clause applies to federal government. GENERAL RULE Individual has right to a fair process when government acts to deprive of life, liberty, or property. Deprivation: intentional (or perhaps reckless) rather than negligent. Liberty - Physical freedom (e.g., from institutionalization, deportation). - Constitutional rights (e.g., parental rights). Not: mere harm to reputation. Property - Real and personal, tangible and intangible. - Government entitlement to which an individual has a reasonable expectation of continued receipt. EXAMPLES welfare benefits, public education, government licenses, tenured employment or term employment for duration of term. Not: at-will employment.

Privileges or Immunities of 14A (not really tested)

Fundamental right to interstate travel. Right to enter/leave a state. Equal treatment once become permanent resident of state. EXAMPLE California could not limit first-year residents of state to welfare benefits they would have received in prior state of residence. (Saenz, 1999) - No fundamental right to international travel. - Right to petition federal government.

GOVERNMENT SPEECH

Government speech is generally not subject to 1A. - 1A does not constrain government from espousing whatever views and policies it wishes. (Walker, 2015) EXAMPLES SOTU address, park statues. (Summum, 2009) - 1A does constrain government's ability to compel private parties to convey message. EXAMPLE "Live Free or Die" on license plates (viewpoint based, invalid under SS). (Wooley, 1977)

Police Powers (LP)

Have power to make laws for and Police: Federal Lands 1. US Territories 2. Washing D.C - are federal laws 3. Military

Due Process: IF DEPRIVED, WHAT PROCESS WAS DUE?

IF DEPRIVED, WHAT PROCESS WAS DUE? • Notice • Opportunity to be heard • Neutral decision-maker Notice Reasonably calculated to inform person of deprivation. Hearing Pre-deprivation hearing generally preferred unless impracticable. EXAMPLES Pre: terminating welfare benefits or utilities. (Goldberg, 1970; Memphis Light, 1987) Post: emergency institutionalization, suspension of driver's license after failed breathalyzer. (Mackey, 1979) Balancing test (Mathews, 1976) determines nature and extent of procedures, considering - Importance of interest to individual - Risk of error through procedures used - Accuracy gain from additional procedures - Burden on government (e.g., inefficiency and costs) EXAMPLES Termination of parental rights: requires notice, hearing, proof of neglect or misconduct by clear and convincing evidence. Detention of citizen as enemy combatant: requires meaningful opportunity to contest factual basis for detention, considering burden on Executive in wartime. Neutral Decision-maker No actual or serious risk of bias. (Caperton, 2009)

COMMERCIAL SPEECH

Includes: ads and promotions of products and services, brand marketing (e.g., Nike swish) Insufficient: profit motive (e.g., Dickens, New York Times) Protected v. Unprotected Unprotected - false, - misleading, or - illegal product or service Protected: all other commercial speech Test (Intermediate Scrutiny): - Substantial government interest (e.g., consumer protection) - Narrowly tailored (reasonable fit => least restrictive)

Licensing systems

Licensing systems must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials.

Plaintiff seeks declaration on constitutionality of anti-contraceptive law not enforced in 80 years. Ripe? (Poe, 1961) Drug firms seek declaration FDA lacked authority to require generic names on all drug labels and ads. Compliance would cost $$$; noncompliance would result in serious criminal and civil penalties. Ripe? (Abbot Labs., 1967)

No - P is not under any threat = no undue hardship. Yes - Can show substantial hardship (high cost to meet requirement). Issues are legal as to FDA authority.

Non-Marital Children ("Illegitimacy") Classification Children of Undocumented Aliens

Non-Marital Children ("Illegitimacy") Test: intermediate scrutiny Laws that discriminate against all non-marital children are likely prejudicial and invalid. EXAMPLE Law permitting parents to sue for wrongful death for marital but not non-marital children. (Glona, 1968) Laws that distinguish among non-marital children are more likely to be upheld. EXAMPLE Law allowing non-marital children to inherit from father only if paternity was established during latter's lifetime. (Lalli, 1978) Children of Undocumented Aliens Test: unclear. Maybe intermediate scrutiny, but rational basis is safest bet. Law denying children of undocumented aliens free public education was invalidated. Unclear whether Court applied rational basis or heightened (intermediate) scrutiny. (Plyler, 1982)

Parade permits given at discretion of city official without any standards. Valid? Parade permits given to all who pay reasonable fee for security and sanitation. Valid?

Not valid - discretion of one person. Yes valid - content neutral.

Freedom of Religion ESTABLISHMENT CLAUSE

Note: Court has not settled on single test, so government may violate under one or more tests. Neutrality Neutrality Test: Government must remain neutral with respect to religion, neither favoring nor disfavoring it. EXAMPLES - Neutral: providing police and fire protection to churches on same basis as to secular community. - Favor: exemption of religious publications, but not others, from sales tax. - Disfavor: allow all student groups, except religious ones, after-hours access to school meeting rooms. (Good News Club, 2001) Coercion Coercion Test: Government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion. EXAMPLES Direct: fines for not attending church. Indirect: providing for clergy invocation and benediction at middle-school graduation (But cf. town meeting with opening prayer by open selection process). (Weisman, 1992) Lemon Lemon Test 1. primary purpose is sectarian, or 2. primary effect is sectarian, or 3. excessive entanglement between government and religion EXAMPLES - Purpose: posting copies of Ten Commandments on walls of public school classrooms has a primarily sectarian purpose, despite legislative statement to contrary. (Stone, 1980) - Effect: reciting Lord's Prayer at beginning of public school day. - Entanglement: micromanagement and constant monitoring by public school officials to ensure that special education teachers sent to parochial schools do not teach religion. (Cf. Lemon, 1971) Endorsement Endorsement Test: From standpoint of reasonable and informed observer, government must not appear to endorse or disapprove of religion, making it seem relevant to a person's standing in the political community. EXAMPLES Endorsement: lone display of nativity scene on courthouse steps. (Allegheny County, 1989) Non-endorsement: display of creche surrounded by Santa, reindeer, elephant, clown, candy cane, Teddy bear, and other non-sectarian holiday symbols. (Lynch, 1984) History and Tradition History and Tradition Approach: Sometimes the Court sets aside the above principles and finds that a state religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation. - Note: helps if the display or practice has been around for a while or is in historical setting. EXAMPLES - Prayer opening legislative session or city council meeting. (Marsh, 1983; Galloway, 2014) - Four-decade-old Ten Commandments on Texas capitol grounds surrounded by other displays of historical or societal significance. (Van Orden, 2005) - Large WWI memorial cross on median. (American Humanist Assoc., 2019)

Advisory Opinions (JO)

Opinion providing no redressability. Prohibited. Rule: Federal courts may not render advisory opinions, which lack: An actual dispute between adverse parties, or Any legally binding effect on the parties.

Relations and family Privacy Rights (Fundamental Rights) Strict scrutiny

Parental rights: Includes: companionship, care, custody, and management of children. Right to send kids to private school or forbid visitation with grandparents. Living with extended family: City may not prohibit extended family (e.g., cousins) from living in single household. (Moore, 1977)

Procreation Privacy Rights (Fundamental Rights) Strict scrutiny

Peoples right to procreate can not be limited by the state. State may not sterilize repeat offenders of crimes of "moral turpitude." (Skinner, 1942)

PRESS, EXPRESSIVE ASSOCIATIONS, AND CORPORATIONS AND UNIONS

Press, expressive associations (e.g., political parties, NAACP, NRA), and corporations and unions (engaging in non-commercial speech, e.g., political advocacy) are generally treated the same as other speakers.

PUBLIC EMPLOYMENT - Free Speech

Public Employee Speech Unprotected - private concern at workplace (e.g., office gossip), or - public concern, but pursuant to official duties (e.g., TPS report, closing argument) Protected - private concern outside workplace (e.g., dinner conversations), or - public concern, as citizen rather than pursuant to official duties, at or outside workplace (e.g., political chat at lunch) Test for Protected Public Employee Speech Balance speech value v. state interest in efficient and effective operation.

Defamation Rules

Public Officials, Public Figures, any subject + Actual malice = Any damages. Private figures, public concern + actual malice = Presumed and punitive damages. Private figures, public concern + negligence = actual damages Private figure, private concern + no actual malice = any damages.

PUBLIC USE? Public purpose: . JUST COMPENSATION?

Public purpose: Any legitimate public purpose, i.e., any purpose that government reasonably believes will benefit public. JUST COMPENSATION: Fair market value at time of taking (benefit to government is irrelevant).

Right to Vote Right to Vote (Fundamental Rights) Strict scrutiny

Rational basis for reasonable requirements that protect rather than hinder right to vote: Age, residency, citizenship. Strict scrutiny for onerous or potentially discriminatory restrictions: Poll taxes, Literacy tests One Person, One Vote Principle State and local representatives (including state senators) EP requires population of voting districts be substantially equal. EXAMPLE 16% variance upheld as reasonable in light of state interest in preserving political subdivisions and communities and geographic factors. Below 10% is presumptively valid. Federal representatives (not U.S. Senators) Art. I requires population of congressional districts within a state to be as close to mathematical equality as practicable. EXAMPLE 0.7% variance invalidated. Racial Gerrymandering Strict scrutiny if race was predominant factor. Political Gerrymandering Non-justiciable as a political question. (Rucho, 2019)

FREEDOM OF RELIGION FREE EXERCISE CLAUSE

Religion Traditional religion as well as beliefs that play role in life of believer similar to the role that religion plays in life of traditional adherents. - To decide religious claims, government (including courts) may inquire into the sincerity of religious beliefs, but not their truth. Free Exercise Test - Discriminatory laws = strict scrutiny - Neutral laws of general applicability = not subject to Free Exercise Clause *Exception: Free Exercise Clause exempts religious organizations from neutral employment laws in hiring or firing ministers. (Hosanna-Tabor, 2012) Discriminatory Laws - Not neutral facially with respect to religious belief, conduct, or status. - Not generally applicable but targeted at religion generally or a religion in particular. Exception to neutral law of general applicability to accommodate religious practice is not required by Free Exercise Clause, but does not violate Establishment Clause.

GENERAL SPEECH RESTRICTIONS Content based Content neutral

Restrictions on protected speech that are generally applicable (i.e., not limited to public property, public schools, or public employees). General Free Speech Tests Content-based = strict scrutiny - Invalid Content-neutral = intermediate scrutiny Content-Based Content-based restrictions facially target certain topics or messages, or are justified by reference to potential harms produced by certain topics or messages. EXAMPLE Ban on sale of violent video games to minors. (Entertainment Merchants, 2011) Content-Neutral Content-neutral restrictions do not target certain topics or messages, and suppress speech for reasons unrelated to any topics or messages. - Often channels speech on basis of time, place, or manner. EXAMPLE Ban on concerts in park above certain decibel level. (Cf. Ward, 1989)

Commerce Powers (LP)

Rule Congress may regulate commerce with: - Foreign nations - Indian tribes - Among states Interstate Commerce Broadest and most common basis for regulation. IC includes: - Channels of IC: highways, waterways, telephone lines, Internet - Instrumentalities of IC: planes, trains, automobiles, persons in interstate commerce - Substantial effect on IC in aggregate (even purely local activities) E.g., growing wheat in backyard for home consumption. (Wickard, 1942) -Waterways - congress can regulate all navigable waterways Limits Noneconomic activity in area traditionally regulated by states. Compelling participation in commerce (even if lack of participation substantially affects IC).

DEFAMATION

Rule To promote robust public debate, 1A bars recovery under state defamation law for speech made without actual malice about - public officials, - public figures, or - matters of public concern. Actual Malice (by clear and convincing evidence) - Knowledge of falsity, or - Reckless disregard of the truth. Public Officials - Holding or running for elective office (at any level). - Public employees in positions of public importance (e.g., prosecutor, school principal, police officer). Public Figures - Assumed roles of prominence in society. - Achieved pervasive fame and notoriety. - Thrust themselves into particular public controversies to influence their resolution. Public Concern Matters important to society and democracy. Application For defamation claims, identify: - Type of plaintiff (public official, public figure, or private figure), and - Subject matter of the alleged defamation (public or private concern). Those will determine: - Whether the plaintiff must prove actual malice (in addition to proving state defamation elements), and - What damages plaintiffs may recover.

RETROACTIVE LEGISLATION BILLS OF ATTAINDER

Rule: Neither state nor federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial. Punishment: Traditional sanctions (e.g., death, prison, fines, confiscation) and punitive measures (e.g., exclusion from employment and benefits). EXAMPLE Federal budget law denying salary payments to federal employees that Congress determined to be subversive. (Lovett, 1946)

RETROACTIVE LEGISLATION EX POST FACTO LAWS

Rule: Neither state nor federal government may pass legislation that retroactively alters criminal liability. Ex Post Facto Categories Criminalize act that was innocent when done. Make crime greater than when committed. Set greater punishment than when act was done. Reduce evidence required to convict from what was required at time of act.

Standing (JP)

Rule: Plaintiff must have standing to sue. The standing requirements are: 1. Injury 2. Causation 3. Redressability

Executive Powers

SOURCE Article II DOMESTIC POWERS Enforcement President has power (and duty) to execute laws. Inherent (Implied) Presidential Powers • Highest where authorized by Congress. • Lowest where prohibited by Congress. • Gray area where neither. FOREIGN POWERS War: Congress alone has power to declare war. - President as Commander in Chief has broad discretion to deploy troops internationally to protect American lives and property (e.g., Vietnam). - Challenges are likely non-justiciable as a political question.

FREEDOM OF SPEECH Is it speech?

SPEECH Words, symbols, and expressive conduct. Expressive Conduct - Conduct that is inherently expressive. - Conduct that is: - intended to convey message, and reasonably likely to be perceived as conveying message.

Equal Protection CLASSIFICATIONS and LEVELS OF SCRUTINY SUSPECT CLASSIFICATION: Strict Scrutiny (Quasi-suspect): Intermediate Scrutiny Rational Basis Scrutiny

SUSPECT CLASSIFICATION Strict Scrutiny: - race - national origin - alienage classifications by state generally denial of fundamental rights to some (Quasi-suspect) Intermediate Scrutiny: - gender - non-marital children - undocumented alien children (maybe) Rational Basis - age - disability - wealth - alienage classifications by Congress - alienage classifications by state related to democratic governance all other classifications Alienage (Non-Citizen Status) Congressional Classification Test: rational basis. State and Local Classification Test: strict scrutiny.

Legislative Powers

Source: Article I, Section 8 Limit: Enumerated powers. Unlike states, Congress has no general police power to pass laws. Exceptions: federal land, Indian reservations, D.C. Necessary and Proper Clause - Not a basis of legislative power. - Allows Congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution. EXAMPLE Article I gives Congress power to raise and support armies, but not to hold a bake sale. Nonetheless, Congress may choose the means of a bake sale to help raise and support armies.

Judicial Powers

Source: Article III • Limit: Actual cases and controversies • Doctrine: Justiciability, whether a lawsuit is capable of judicial resolution as a case or controversy; depends on: • What it requests (no advisory opinions), • When it is brought (ripe and not moot), and • Who brings it (someone with standing).

State involvement Rule

State Involvement Rule: Significant state involvement in challenged private conduct (e.g., assistance, encouragement, supervision, entwinement, or approval) may count as state action.

Marriage Privacy Rights (Fundamental Rights) Strict scrutiny

State cannot prohibit a class of adults marrying unless govt can demonstrate that the law is narrowly tailored to promote a compelling interests. Every state has to issue marriage licenses to people of same sex. Can regulate - reasonable majority age, proper identification

Sexual Relations Privacy Rights (Fundamental Rights) Strict scrutiny

State has no legitimate interests in making it a crime for fully consenting adults to engage in private intimate sexual conduct. **Standard of review has not been set but a law regulating sexual conduct cannot past rational basis test.

PUBLIC SCHOOLS - Speech

Student Speech Test Personal student speech - Cannot be censored absent evidence of substantial disruption. - Exception: speech promoting illegal drug use does not require showing any disruption. (Frederick, 2007) School speech (including curricular student speech) - Can be censored if reasonably related to legitimate pedagogical concern.

SUPREMACY AND PREEMPTION

Supremacy Clause Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws. Federal law: Constitution, statutes, regulations, treaties, executive agreements. Preemption Express: Congress expressly says so. Implied Conflict: (i) Impossible to follow both federal and state law; or (ii) state law impedes federal law. Field: Extensive federal regulation indicates congressional intent to "occupy the field."

Final Judgment Rule (JP)

Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court. EXAMPLE Reviewed (and reversed) municipal "police court" imposition of $10 fine for disorderly conduct. (Thompson, 1960)

Enumerated Powers (LP)

Taxing and Spending Powers Congress may tax and spend to provide for the general welfare. Includes any public purpose not prohibited by Constitution, even if not within an enumerated power. EXAMPLES: - Tax on factory carbon emissions (no enumerated power to regulate environment). - Spending on schools for states following federal educational standards (no enumerated power to regulate local education). - Tax on failure to purchase health insurance (no commerce power to compel purchase). (Sibelius, 2012) ex. Citizenship, bankruptcy, federal property, patents and copyright, post offices, coining money, territories and D.C., declaring war, raising and supporting armies, providing and maintaining Navy Spending Conditions "Strings" must relate to purpose of spending and not violate Constitution. EXAMPLES Cannot condition school spending on highway speed limits; highway spending on educational standards; or any spending on suppression of government criticism. Strings cannot be "unduly coercive." EXAMPLE Withholding current Medicaid funding (over 10% state budgets) if state refuses to participate in new Medicaid expansion under health care law. (Sebelius, 2012)

Federal Commandeering State

Tenth Amendment prevents the federal government from requiring state officers to act. Cant Force States to do federal immigration work.

INCITEMENT

Test: Advocacy of lawless action that is: intended to produce imminent lawless action, and likely to produce imminent lawless action. Mere advocacy of lawlessness is protected speech.

CHILD PORNOGRAPHY

Test: Depiction of children engaging in sexual conduct defined by state law, whether or not obscene. - Must be actual children (not virtual or adult actors). - In-home possession may be banned. (Osborne, 1990)

OBSCENITY

Test: Depiction of sexual conduct defined by state law that taken as a whole, by contemporary community standards, - appeals to the prurient interest in sex, - is patently offensive, AND - lacks serious social value by national standards. Mere nudity, soft-core pornography, and "dirty words" are not obscene. Right to privacy extends to possession of obscenity at home, which may not be banned. (Stanley, 1969) Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning: - to protect children and unwilling adults from exposure, or - to prevent neighborhood crime and decay. - Ample alternative channels must exist for the speech. EXAMPLES City ban on adult bookstores and theaters within 1000 ft of neighborhoods, schools, churches, and parks, leaving less than 5% of city for such speech, is valid. (Renton, 1986) FCC daytime ban on indecent radio broadcasts such as George Carlin's "seven dirty words" monologue is valid. (Pacifica, 1978)

TRUE THREATS

Test: Words intended to convey to someone a serious threat of bodily harm. (Perhaps recklessly conveying such a threat suffices. Cf. Elonis, 2015.)

FIGHTING WORDS

Test: Words likely to provoke an immediate violent response.

Gender Classification

Test: intermediate scrutiny. Interpretation: Important interest requires exceedingly persuasive justification, not role stereotype.

DELEGATION OF POWER (LP)

To Agencies: May broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power. EXDelegation of authority to EPA to regulate air pollutants that "endanger public health or welfare." To President: can delegate with certain limitations. ****** No line-item veto. Rationale: violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to President to sign or veto). To Congress No legislative veto to void duly enacted laws without bicameralism and presentment. (Chadha, 1983) EXAMPLE Law providing one chamber of Congress may overturn agency regulations.

Mootness (JP)

To Late Rule: Federal courts may only decide live controversies, i.e., plaintiff suffers ongoing injury. Application: Live if: - In suit for injunctive or declaratory relief, challenged law or conduct continues to injure. - In suit for damages, plaintiff not made whole. Exceptions: Though injury has passed, not moot if: - Injury is capable of repetition yet evades review because of inherently limited duration. - Defendant voluntarily ceases challenged activity, but may restart at will, or - In class actions, one plaintiff suffers ongoing injury.

Ripeness (JP)

Too Early Rule: Federal courts may only decide controversies that are ripe for judicial review. Application: Pre-enforcement review of laws (declaratory judgment actions) are generally not ripe, unless, Substantial hardship in absence of review (the more the better), and Issues and record are fit for review (the more legal than factual the better).

Government Property Free Speech

Traditional public forum: Open to public as free speech zone "from time immemorial." Parks, streets, sidewalks *Cannot be undesignated as public forum Designated public forum: Opened by policy or purposeful practice as free speech zone. College kiosks, college email systems *Can be undesignated as public forum Limited public forum: Reserved for particular topics or speakers. Courtroom, university classroom, university student activity fund *Sometimes called non-public forums Non-public forum: Not opened by tradition or designation as free speech zone. Post offices, DMVs, airports. Catch-all category

Due Process Clause 14th Amendment

Translation: State governments must observe fair procedures when they deny a person life, liberty, or property. Easy Examples State law. State officials acting officially (even if unlawfully). Other Examples Public Function Rule: state action exists when private party performs function done by government traditionally and exclusively.

Treaties and Executive Agreements (EP)

Treaties -President negotiates -Senate approval 2/3 -State law is trumped (current and future) -Federal law: trumps existing (not future) federal law Executive Agreements -President negotiates -Senate approval N/A -State law is trumped (current and future) -Federal law always trumps EA

Abortion Undue burden v. Not Undue Burden

Undue Burden: - requiring spousal notification or consent - requiring extensive medical record-keeping and reporting (not directed at maternal health, not sufficiently protective of privacy) - requiring physician admitting privileges at nearby hospital - requiring outpatient surgical-center standards Non-Undue Burden: - requiring licensed physician - requiring informed consent (nature and risk of abortion and childbirth, gestational age) requiring 24-hour waiting period after informed consent - requiring parental notification or consent for minor (with judicial bypass option) - banning "partial-birth" abortions not publicly funding abortions

Categories of Speech Unprotected Partly-Protected Protected

Unprotected - Incitement - Fighting Words - True Threats - Obscenity - Child Pornography - Defamation with actual malice - Commercial Speech (false, misleading, or illegal) Partly-Protected - Defamation about public officials, public figures, or matters of public concern - Commercial Speech (not false, misleading, or illegal) Protected All Other Speech (e.g., Dante, Mortal Kombat)

VAGUENESS, OVERBREADTH, PRIOR RESTRAINTS Speech Laws

Vagueness Test: Law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what is permitted. EXAMPLE Ban on "opprobrious and offensive" words. Overbreadth Test: Law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress. EXAMPLE Ban on all "First Amendment activities" at LAX. Third-party standing is allowed (plaintiff whose speech may be censored raises non-commercial speech claim on behalf of others whose speech may not be censored). Prior Restraints Definition Licensing schemes (e.g., permits) or injunctions that prevent speech before it occurs, rather than punishing speech afterwards. Disfavored Historically, prior restraints have been greatly disfavored. No special tests, but harder for government to win. - Content-based prior restraints = very strict scrutiny.

Injury (Standing) JP

What Constitutes Injury: Almost any harm that is concrete (not hypothetical) and particularized (not general). physical, economic, environmental, loss of constitutional or statutory rights Not: ideological objections or generalized grievances as citizen or taxpayer. - Citizen may not sue to force government to obey laws. (Lujan, 1992) - Taxpayer may not sue over how government spends tax revenues. - Official proponents of ballot initiative may not defend enacted measure. (Perry, 2013) Exceptions: - Taxpayer challenge to own tax liability. - Congressional spending in violation of Establishment Clause. *Not executive spending. When Injury Must Occur Injury must have occurred or will imminently occur. Injunctive or declaratory relief: must show likelihood of future harm. Who Must Suffer Injury Injury must be personally suffered by plaintiff rather than those not before court. *No third party standing.

Company runs "company town." State action when it prohibits minorities from town park? (Cf. Marsh, 1946; Evans, 1966) Company runs shopping mall. State Action? (Hudgens, 1976) State privatizes prisons. State Action?

Yes. Park in middle of town is a traditional public forum and running the park is govt function. No. not traditional govt action. Yes. Govt can out source to private.

Rational Basis (Non-Fundamental Rights)

economic rights education physician-assisted suicide

Substantive Due Process Analysis

i. Determine whether there is a state action ii. Define the asserted liberty interest at stake iii. Determine whether the liberty is a fundamental right 1. Precedent - all fundam. rts. recog. by this court 2. History 3. National values/ethos - implicit in ordered liberty iv. Substantial infringement - is the right substantially infringed? - shows how the law prohibits or criminally punishes person for the right v. apply the appropriate level of scrutiny Fundamental Right = Strict Scrutiny Non-fundamental Right = Rational Basis

sovereign immunity

the rule that a citizen cannot sue the government/state without the government's consent. Exceptions: - waiver - plaintiff = states or feds - bankruptcy proceedings - clear abrogation by Congress under Fourteenth Amendment powers to prevent discrimination Not barred: State Officials: - injunctive relief - money damages from own pocket Local Governments: can sue for anything.