Constitutional Law

Procedural Due Process - "Deprivation"

A "deprivation" of life, liberty, or property requires more than a mere denial of certain kinds of remedies. Only when the government affords no remedy or inadequate remedies may a deprivation of life, liberty, or property result.

Taxing Power - Direct Taxes - Must Be Apportioned

A "direct" tax (imposed directly on property or on the person) has seldom been employed by Congress b/c of the cumbersome apportionment requirement;

Freedom of the Press - Broadcasting Regulations - Prohibiting Indecent Speech

B/c of a broadcast's ability to invade the privacy of the home, the First Amendment does not forbid imposing civil sanctions on a broadcaster for airing a full monologue (in contrast to isolated use of a few such words) of "patently offensive sexual and excretory speech," even though it is not "obscene"--at least at those times when children are likely to be listening.

State as Market Participant (Commerce Clause)

Commerce Clause does not prevent state from preferring its own citizens when the state is acting as a market participant

Fundamental Rights - Right to Vote - Poll Taxes

Poll taxes are prohibited under 24th Amendment, and SC has held that they also violate EPC b/c wealth is not related to government's interest in having voters vote intelligently

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Charitable Soliciatations

Charitable solicitations for funds in residential areas are within the protection of the First Amendment. However, they are subject to reasonable regulation.

Quasi-Suspect Classifications - Gender - Affirmative Action Benefiting Women

Classifications benefiting women that are designed to remedy past discrimination against women will generally be upheld.

Prior Restraints - Sufficiency of Governmental Interest - Preserving air Trial

Preserving a fair trial for an accused might be a sufficient basis for prior restraint. However, the restraint will be upheld only if it is the only sure way of preserving a fair trial

Appointment power

President appoints ambassadors, federal judges, and officers of U.S. Congress may vest appointment of inferior officers in President, heads of departments, or lower federal courts. Congress may not give itself or its officers the appointment power. President may not make recess appointments during intrasession recesses that are less than 10 days

President Has No Power to Implement Non-Self-Executing Treaties

President generally does not have any independnet power to issue a "memorandum" ordering compliance with non-self-executing treat that has not been the subject of effectuating legislation by Congress.

Significant State Involvement - Official Encouragement

Purportedly private action will be given state action status if the action is encouraged or sanctioned by the state

Substantive Due Process - Applicable Standards - Mere Rationality - Taxation

Taxation is invariably sustained. However, discriminatory taxes might be invalidated.

Limits on recognition power

Unconstitutional for Congress by statute to designate capitol of foreign country.

Vagueness Doctrine

Under 14th Amendment DPC, law can be held unconstitutional if it fails to provide minimal guidelines to govern law enforcement officers so as to discourage arbitrary and discriminatory enforcement.

Commerce Power (p. 16)

Art. I, Section 8, Clause 3 empowers Congress to "regulate commerce with foreign nations and among the several states, and with the Indian tribes.

Unprotected Speech--Regulation or Punishment Because of Content--Clear and Present Danger--Compelling Justification

"Compelling justification" test was employed to hold unconstitutional Georgia legislature's refusal to seat an elected black representative where the representative's speeches, critical of U.S. policy on Vietnam and the draft, led the legislature to doubt his fitness and his ability to take the oath of office in good faith.

Procedural Due Process - Property

"Property" includes more than personal belongings and realty, chattels, or money, but an abstract need or desire for (or a unilateral expectation of) the benefit is not enough. There must be a legitimate claim or entitlement to the benefit under state or federal law.

Significant State Involvement--Facilitating Private Action

"State action" exists whenever a state affirmatively facilities, encourages, or authorizes acts of discrimination by its citizens. Note, however, that there must be some sort of affirmative act by the state approving the private action; it is not enough that the state permits the conduct to occur

Three requirements for full faith and credit

(1) Court that rendered the judgment must have had jurisdiction over the parties and subject matter (NOTE: if issue of jxn was litigated in one state, that court's ruling on jxn is final and must be recognized by other states) (2) Judgment must have been on the merits; i.e., on the substance of the plaintiff's claim rather than on a procedural issue, such as improper venue or running of the SOL; and (3) Judgment must be final

Eleventh Amendment's jurisdictional bar extends to:

(i) Actions against state governments for damages; (ii) Actions against state governments for injunctive or declaratory relief where the state is named as a party; (iii) Actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership or land; and (iv) Actions against state government officers for violating state law.

Three-Party Contract Clause Test

(i) Does the legislation substantially impair a party's rights under an existing contract? If not, the legislation is valid under the Contract Clause. If it does, it will be valid only if it: (ii) Services and important an legitimate public interest; and (iii) Is a reasonable and narrowly tailored means of promoting that interest.

Exceptions to 11th Amendment--Certain Actions Against State Officers

(i) Federal court may enjoin state officer to refrain from future actions that violate federal law or to take prospective actions to comply with constitutional mandates. (ii) Federal court may hear an action for damages against state officer for violations of federal law if the monetary damages are to be paid out of the officer's own pocket. Rational is that by acting outside the scope of federal law, officer is stripped of his representative capacity--the action is not one against a state but rather against an individual. (iii) Federal court may hear an action for damages against state officer where effect of action will be to force state to pay money in future to comply with court order. However, federal court jxn is barred if the action will result in retroactive damages to be paid from the state treasury.

Unprotected Speech--Regulation or Punishment Because of Content--List of Reasonos for Which Court Has Allowed Content-Based Restrictions on Speech

(i) It creates a clear and present danger of imminent lawless action. (ii) It constitutes "fighting words" as defined by a narrow, precise statute. (iii) The speech, film, etc., is obscene (including child porn). (iv) Speech constitutes defamation, which may be the subject of a civil "penalty" through a tort action brought by the injured party in conformity with the relevant rules. (v) The speech violates regulations against false or deceptive advertising--commercial speech is protected by the First Amendment and it cannot be proscribed simply to help certain private interests. (vi) The government can demonstrate a "compelling interest" in limitation of the First Amendment activity. Even if a regulation falls within one of the above categories, it will not necessarily b held valid; it might still be held to be void for vagueness or overbreadth.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Actual Malice Defined

(i) Knowledge that the statement was false, or (ii) Reckless disregard as to its truth or falsity. Plaintiff must show that defendant was subjectively aware that the statement he published was false or that he subjectively entertained serious doubts as to its truthfulness.

What is not barred under the 11th Amendment?

(i) Local governments are not protected; (ii) Actions by the U.S. government or other state governments are not barred; (iii) 11th amendment does not apply to federal laws that are exercises of Congress's Article I power to create bankruptcy laws, and thus does not bar actions of the U.S. bankruptcy courts that have a direct impact on state finances.

Statute retroactively alters a law in a substantially prejudicial manner if it:

(i) Makes criminal an act that was innocent when done; (ii) Prescribes greater punishment for an act than was prescribed for the act when it was committed; or (iii) Reduces the evidence required to convict a person of a crime from what was required at the time that the act was allegedly committed.

Examples of political questions

(i) Questions regarding the conduct of foreign relations or issues as to when hostilities have stopped; (ii) Questions relating to which groupu of delegates should be seated at the Democratic National Convention; (iii) Procedures used by the senate to "try" impeachments; (iv) What constitutes a "republican form of government" guaranteed to the state by Art. IV, Section 4; (v) Whether the number of votes a candidate for Congress received is sufficient to elect him; (vi) Questions regarding partisan legislative reapportionment--these are effectively nonjusticiable.

The doctrine of sovereign immunity bars:

(i) Suits against a state government in state court, even on federal claims, without the defendant state's consent; and (ii) Adjudicative actions against states and state agencies before federal administrative agencies.

Unprotected Speech--Regulation or Punishment Because of Content--Fighting Words--Truth Threats

1st Amendment does not protect "true threats"--statements meant to communicate an intent to place an individual or group in fear of bodily harm.

Interstate Commerce Includes:

1) All activity affecting two or more states; and 2) Includes transportation or traffic--vehicular transportation not required. Any transmission across state lines, such as electricity, gas, telegraph, telephone, TV, radio, and mail transmission (including educational materials and sale of insurance), will constitute interstate commerce.

Article III provides that federal courts shall have judicial power over all cases and controversies:

1. Arising under the Constitution, laws, or treaties of the U.S. 2. Of admiralty and maritime jurisdiction; 3. In which the U.S. is a party; 4. Between two or more states; 5. Between a state and citizens of another state; 6. Between citizens of different states; 7. Between citizens of the same state claiming lands under grants of different states; and 8. Between a state or citizens thereof and foreign states, citizens, or subjects

Elements of Standing

1. Injury 2. Causation/redressability 3. No third party standing 4. No generalized grievances

Tax or Regulation that Applies Only to States

10th Amendment does limit Congress's power to regulate the states alone by requiring the states to act in a particular way. Congress may not compel states to enact or enforce a regulatory program. Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, there is a possibility that SC would use 10th Amendment to prohibit the tax.

Commandeering State Officials

10th Amendment prohibits Congress from adopting statute that "commandeers" state officials by requiring states to regulate their own citizens. However, the Court has allowed Congress to regulate the states by prohibiting them from performing certain acts.

Sovereign Immunity

11th Amendment bars suits against states in federal courts. Bars suits against states in state courts or federal agencies.

Eleventh Amendment Limits on Federal Courts

11th Amendment is a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party's or foreign government's claims against a state government

14th Amendment - Privileges of National Citizenship

14th Amendment P&I Clause prohibits states from denying their citizens the privileges and immunities of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of citizen to the U.S.

14th Amendment - State Action Requirement

14th Amendment applies only if there is action by a state or local government, government officer, or private individual whose behavior meets the requirements for state action.

14th Amendment - General Info

14th Amendment prohibits states (not fed gov or private persons) from depriving any person of life, liberty, or property w/out due process and equal protection of the law. This amendment is a most important source of limitations on the states' power over individuals because, through the Due Process Clause, most of the protections of the Bill of Rights apply to the states.

Unprotected Speech--Regulation or Punishment Because of Content--Fighting Words--Punishing Racially Motivated Conduct

1st Amendment does not protect conduct simply b/c it happens to be motivated by a person's views or beliefs. Thus, state can increase convicted defendant's sentence for aggravated battery based on the fact that the defendant selected the victim of his crime b/c of the victim's race. However, punishment may not be increased merely b/c of the defendant's abstract beliefs.

Federal Power (21st Amendment)

21st Amendment does not prohibit Congress from controlling economic transactions involving alcoholic beverages under the federal commerce power. Thus, federal antitrust law can prohibit a practice of liquor dealers that has the effect of fixing minimum prices. Similarly, Congress may, without violating the 21st Amendment, "regulate" liquor distribution by imposing conditions on the grant of federal funds given under the spending power.

Unprotected Speech--Regulation or Punishment Because of Content--Statutes Must Not Be Vague--Liquor Regulation

21st Amendment grants states more than the usual regulatory authority with respect to intoxicating beverages. Therefore, regulations prohibiting explicit live sexual entertainment and films in establishments licensed to sell liquor by the drink even though proscribing some forms of visual presentation that would not be obscene even though proscribing some forms of visual presentation that would not be obscene under Miller do not violate the 1st Amendment as long as they are not "irrational."

Intrastate Regulations - 21st Amendment (State Control Over Liquor)

21st Amendment, which repealed prohibition, gives state governments wide latitude over the importation of liquor and the conditions under which liquor is sold or used w/in the state. However, state liquor regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause, which prohibits both outright economic favoritism for local businesses and attempts to regulate out-of-state transactions in order to guarantee the competitive position of in-state businesses.

The "Taking" Clause - Not a Grant of Power

5th Amendment is not a grant of power but rather is a limitation on power (i.e., taking must be for public purpose and compensation must be paid). Power for a taking must arise out of some other source (e.g., police power)

The "Taking" Clause - In General

5th Amendment prohibits governmental taking of private property "for public use without just compensation." Prohibition applies to states through 14th Amendment and taking questions often arise in connection with states' exercise of their police power (i.e., power to legislate for the health, welfare, safety, etc., of the people)

Procedural Due Process - Basic Principle

5th and 14th Amendment DPC provide that government shall not take a person's life, liberty, or property w/out due process of law. Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge)

Necessary to Important State Interest (Commerce Clause)

A discriminatory state or local law may be valid if it furthers an important, noneconomic state interest (e.g., health or safety) and there are no reasonable alternatives available

Bar Membership and Public Employment - Restraints on Speech Activities of Government Employees - Speech Made Pursuant to Official Duties

A government employee may punish a gov employee's speech whenever the speech is made on the job and pursuant to the employee's official duties. This is true even if the speech touches on a matter of public concern.

Freedom of Association & Belief - Electoral Process - Limits on Contributions - To Political Candidate - Equalizing Large Expenditures

A law increasing contribution limits for candidate whose wealthy opponent achieves an advantage by spending personal funds (exceeding $350k) violates the First amendment. Rationale: Although Congress may raise contribution limits for both candidates in situations of this kind, "penalizing" a self-financing candidate who robustly expresses the right to advocate his own election cannot be justified by leveling opportunities for candidates of different personal wealth.

Equal Protection - Facial Discrimination

A law may include a classification on its face. This type of law, by its own terms, makes an explicit distinction between classes of person (perhaps by race or gender; e.g., all white males 21 or older may serve as jurors). In such cass, the courts merely have to apply the appropriate standard of review for that classification.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Mailboxes

A letter/mailbox at a business or residence is not a public forum. Thus, the government may prohibit placing unstamped items in post boxes to promote efficient mail service.

Bar Membership and Public Employment - Restraints on Speech Activities of Government Employees - Bans on Receiving Honoraria

A provision of the Ethics in Government Act banning gov employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to "rank and file" employees. Such a rule deters speech within a broad category of expression by a massive number of potential speakers and thus can be justified only if the government can show that the employees' and their potential audiences' rights are outweighed by the necessary impact the speech would have on actual operation of the government.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Candidate Debates on Public TV

A public TV station debate for congressional candidates from major parties or who have strong popular support is not a "public forum" b/c such debates are not open to a class of speakers (e.g., all candidates) but rather to selected members of the class. Exclusion of candidates who are not from a major party and who lack popular support is permissible b/c these criteria are (i) viewpoint neutral and (ii) reasonable in light of the logistics for an educationally valuable debate.

Type of Process - Public Employment

A public employee who is subject to removal only for "cause) (and who, therefore, has a property interest in his job) generally must be given notice of charges against him that are the basis for termination, and a pre-termination opportunity to respond to those charges. Employee does not have to be given a full, formal hearing before his termination as long as there is a fair system of pre-termination notice, an opportunity to respond (to the person making the termination decision), and a subsequent evidentiary hearing regarding the termination (with reinstatement if employee prevails). BUT NOTE: If there is a significant reason for not keeping the employee on the job, he may be suspended without pay and without an opportunity to respond as long as there is a prompt post-suspension hearing with reinstatement and back pay if employee prevails.

Freedom of Speech and Assembly - Unfettered Discretion

A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. The fear, of course, is that the officials will use their discretionary power to prohibit dissemination of ideas that they do not agree with. This issue usually arises under licensing schemes established to regulate the time, place, and manner of speech. To be valid, such licensing schemes must be related to an important government interest, contain procedural safeguards, and not grant officials unbridled discretion.

Equal Protection - Remedial Justifications - Diversity in Primary and Secondary Public Education

A school board may not assign students to a public primary or secondary school on the basis of race unless necessary to achieve a compelling interest, such as remedying past unconstitutional (i.e., intentional) discrimination. A majority of the Court has not found diversity itself to be a sufficient compelling interest.

Discriminatory Taxes - Finding Discrimination - Tax with In-State Subsidy

A seemingly uniform tax may be ruled discriminatory if the proceeds from the tax are "earmarked" for subsidies to in-state businesses.

Taxing Power - Taxes Generally Valid

Absent specific restriction, be hesitant to rule against a tax measure on the bar exam. Tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity

Presidential immunity

Absolute immunity to civil suits for money damages for any actions while in office. Does not have immunity for actions that occurred prior to taking office.

Eminent Domain

Acquisition of property for a public purpose by eminent domain is indirectly recognized by the Fifth Amendment. "Nor shall private property be taken for public use, without just compensation." Federal taking must be for the purpose of effectuating an enumerated power under some other Constitutional provision.

Ad Valorem Property Taxes

Ad valorem property taxes are taxes based on a percentage of the assessed value of the property in question. Such taxes are generally valid. However, a Commerce Clause issue arises when the property taxed moves in interstate commerce. Goods in transit are totally exempt from taxation. Once the goods come to a halt in a state, they may be taxed. Then, the issue usually revolves around whether the tax imposes an undue cumulative burden.

Procedural Due Process - Liberty - Commitment to Mental Institution - Adults

Adults are entitled to an adversary hearing before they are indefinitely committed to a mental institution against their will. The state must prove the basis for commitment by "clear and convincing" evidence. However, after a person has been acquitted of criminal charges on the basis of an insanity defense, the acquitted defendant can be committed if a court finds by a preponderance of the evidence that the person should be committed to a mental health care facility.

Prior Restraints - Obscenity Cases - Injunction

After seizing material, gov may enjoin its further publication only after it is determined to be obscene in a full judicial hearing

Equal Protection - Age

Age is not a suspect class. Thus, gov action based on age will be upheld if there is a conceivable rational basis for the classification.

Define executive agreement

Agreement between U.S. and foreign country that is effective when signed by president and head of foreign nation. Executive agreements can be used for any purpose.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Airport Terminals

Airport terminals operated by a public authority are not public forums. Thus, it is reasonable to ban solicitation within airport terminals, since it presents a risk of fraud to hurrying passengers. However, it is not reasonable to ban leafletting within multipurpose terminals having qualities similar to a shopping mall.

Non-suspect or quasi-suspect classifications

All classifications that are not suspect or quasi-suspect are reviewed under the rational basis standard and will be upheld unless they bear no rational relationship to any conceivable legitimate government interest. Nevertheless, if the government has no interest in denying a benefit or imposing a burden on a group of persons other than a societal fear or dislike of them, the classification will not meet the standard.

10th Amendment as limit on Congressional powers

All powers not granted to U.S., nor prohibited to states, are reserved to the states or the people a. Congress cannot compel state regulatory or legislative action (can induce action by putting strings on grants, so long as conditions are expressly stated and relate to purpose of spending program--also, conditions cannot be unduly coercive) b. Congress may prohibit harmful commercial activity by state governments.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Regulation of Conduct

All speech is conveyed through physical action, and while the freedom of belief is absolute, the freedom to convey beliefs cannot be. The extent to which government may regulate speech-related conduct depends on whether the forum involved is a public forum, a limited public forum, or a nonpublic forum.

Relationship b/n Interstate P&I Clause and Commerce Clause

Although Art. IV P&I Clause and Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both must be considered in analyzing bar exam questions.

No Appointment of Officers by Congress

Although Congress may appoint its own officers to carry on internal legislative tasks, it may not appoint members of a body with administrative or enforcement powers; such persons are "officers of the U.S." and must, pursuant to Art. II, Section 2, be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments.

Power of Congress to Permit or Prohibit State Regulation

Although Congress's commerce power is nonexclusive, states' power to regulate interstate commerce is restricted by the negative implications of the Commerce Clause, even absent federal legislation--the states generally may not discriminate against interstate commerce. Nevertheless, Congress is not so restricted; it may allow the states to adopt legislation that would otherwise violate the Commerce Clause. LIMITATION: While Congress may permit states to adopt regulations that would otherwise violate the Commerce Clause, such consent will not obviate other constitutional objections to the regulation. Thus, Congress may not give states the power to restrict civil liberties.

Ex Post Facto - Indirect "Application" to Courts

Although Ex Post Facto Clauses prohibit only retroactive legislation, the SC has held that due process prohibits courts from retroactively interpreting criminal law in an unexpected an indefensible way

Admiralty Power

Although congressional power to legislate in maritime matters is not expressed in the Constitution, the SC has implied it from the exclusive jxn given the fed courts in this field by Art. III, Section 2, supported by the Necessary & Proper Clause of Art. I, Section 8. This power is plenary and exclusive, except to the extent that Congress may leave (and has left) some maritime matters to state jxn.

War

Although lacking the power to declare or initiate a "formal" war, the President has extensive military powers (essentially an external field, although applicable to civil war as well and to many domestic affairs caught up in military necessities).

Type of Process - Public Education - Disability Suspension

Although no formal evidentiary hearing is required before a student may be temporarily suspended (for 10 days or less), due process usually requires notice of the charges and an opportunity to explain. However, if the student's presence poses a danger to persons or property, or threatens to disrupt the academic process, such notice and hearing may follow removal as soon as practicable.

Establishment Clause - Financial Benefits to Church-Related Institutions - Tax Exemption Available Only to Religions

Although religious schools or religious associations may be included in tax exemptions available to a variety of secular and religious organizations, a tax exemption that is available only for religious organizations or religious activities violates the Establishment Clause.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Postal Service Property

Although sidewalks generally are public forums, sidewalks on postal service property are not public forums.

Fundamental Rights - Privacy - Rights of Parents - Education

Although state may prescrie reasonable educational standards, it may not require that all children be educated in public schools. Neither may the state forbid education in a language other than English.

Freedom of Association & Belief - Nature of the Right

Although the First Amendment does not mention a right of freedom of association, the right to join together with other persons for expressive or political activity is protected by the First Amendment. However, the right to associate for expressive purposes is not absolute. It may be infringed to serve a compelling government interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms, at least when the infringement would not significantly affect an association's right to express its viewpoints. However, in some cases, a more lenient standard will apply.

Freedom of the Press - Interviewing Prisoners

Although the First Amendment protects prisoners, and especially those corresponding with them by mail, from a sweeping program of censorship, it does not permit journalists to insist upon either interviewing specified prisoners of their choice or inspecting prison grounds.

Freedom of Speech and Assembly - Mandatory Financial Support

Although the federal government may not compel a person to express a message, the government may tax people and use the revenue to express a message with which people disagree.

Unprotected Speech--Regulation or Punishment Because of Content--Fighting Words--Statutes Cannot Be Viewpoint-Based

Although the general class of "fighting words" is proscribable under the 1st Amendment, the SC generally will not tolerate in fighting words statutes restrictions designed to punish only certain viewpoints.

Regulation of Insterstate Commerce by Congress

Although this power is broad and pervasive, it is not exclusive. It is shared with the states to some degree.

Freedom of Association & Belief - Electoral Process - Regulations of Core Political Speech - Distinguishing Political Speech from Candidate Advisory

An ad concerning a political issue, even if sponsored by a corporation, run during an election campaign will be considered to be core political speech--rather than candidate advocacy--unless it is susceptible of no reasonable interpretation other than one as an appeal to vote for or against a particular candidate.

Establishment Clause - Financial Benefits to Church-Related Institutions - Tax Exemption for Religious, Charitable, or Educational Property

An exemption from property tax for real or personal property used exclusively for religious, educational, or charitable purposes does not violate the Establishment Clause. Neither the purpose nor the effect of such an exemption is the advancement or the inhibition of religion, and it constitutes neither sponsorship nor hostility, nor excessive government entanglement with religion. The government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state.

Appeal (mandatory)

Appeal is available only as to decisions made by three-judge federal district court panels that grant or deny injunctive relief. 28 USC 1253

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Question of Fact and Law--Independent Review by Appellate Court

Appellate court conduct independent review of constitutional claims, when necessary, to assure that the proscribed materials depict or describe patently offensive "hard core" sexual conduct.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Procedural Issues--Judicial Review

Appellate court must review defamation case by conducting an independent review of the record to determine if the fact finder (jury) could have found that the malice standard was met.

Postal Power

Art. 1, Section 8, Cl. 7 empowers Congress to establish post offices and post roads. The postal power has been interpreted as granting Congress a postal monopoly. Neither private business nor the states may compete with the Federal Postal Service absent Congress's consent. Congress may validly classify and place reasonable restrictions on the use of the mails but it may not deprive any citizen or group of citizens of the general mail "privilege" or regulate the mail in such a way as to abridge freedom of speech or press (except under valid standards, such as "obscenity") or violate the ban of the Fourth Amendment against unreasonable search and seizure.

Import-Export Clause

Art. I, Section 10, Clause 2 provides: No state shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws...."

Speech or Debate Clause--Special Immunity for Federal Prosecutors

Art. I, Section 6 provides that "For any speech or debate in either House [members of Congress] shall not be questioned in any other place.

War & Related Powers

Art. I, Section 8 gives Congress power to declare war, raise and support armies, provide for and maintain a navy, make rules for the government and regulation of the armed forces, and organize, arm, discipline, and call up the militia. Of course, several other congressional powers may have direct or indirect application to military purposes: tax and spending power, commerce power, Senate's treaty consent power, maritime power, investigatory power, etc.

Power Over Citizenship

Art. I, Section 8, Cl. 4 empowers Congress "to establish a uniform rule of naturalization." Congress's power to exclude aliens is broad. Nonresident Aliens: Aliens have no right to enter the U.S. and can be refused entry b/c of their political beliefs. Resident Aliens: Resident aliens are entitled to notice and hearing before deportation.

Bankruptcy Power

Art. I, Section 8, Cl. 4 empowers Congress to establish uniform laws on the subject of bankruptcies throughout the U.S. This power has been interpreted by the SC as nonexclusive; i.e., state legislation in the field is superseded only to the extent that it conflicts with federal legislation therein.

Article IV--Privileges of State Citizenship

Art. IV, Section 2, Interstate Privileges and Immunities Clause, provides that "the Citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states." Thus, it prohibits discrimination by a state against nonresidents. Corporations and aliens are not citizens of a state for purposes of the P&I Clause.

Supreme Court Appellate Jurisdiction

Article III, Section 2 provides that "in all other Cases before mentioned [i.e., arising under the Constitution, Act of Congress, or treaty], the Supreme Court shall have appellate jxn, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Prior Restraints - Obscenity Cases - Seizure of Books and Films

As with any seizure by gov, seizures of books and films may be made only upon probable cause that they contain obscenity or are otherwise unlawful.

Assignee Standing

Assignee of legal claim has standing even if the assignee has agreed to remit any proceeds recovered from the litigation back to the assignor, if this is done pursuant to ordinary business agreement made in good faith.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Falsity

At common law, a defamatory statement was presumed false; to avoid liability for an otherwise defamatory statement on the ground that it was true, defendant had to assert truth as an affirmative defense. SC has rejected this presumption in all public figure or public concern cases. In these cases, plaintiff must prove by clear and convincing evidence that the statement was false.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Fault

At common law, defendant who had no reason to know that the statement he was making was false and defamatory could still be liable. Now, however, a plaintiff in a public figure or public concern case must prove fault on the part of the defendant. The degree of fault required is higher when plaintiff is a public official or public figure than when plaintiff is private person suing on matter of public concern.

Unprotected Speech--Regulation or Punishment Because of Content--Statutes Must Not Be Vague--Sweeping Language

Attempts to define obscenity broadly have encountered difficulties before the Court

Taking - Just Compensation - Worthless Property

Because just compensation is measured by the loss to the owner and not by the gain to the taker, property that is "worthless" to the owner can be the subject of a taking but no compensation need be paid when it is taken.

Pre-Viability Rule

Before viability of a fetus, a state may adopt regulations protecting the mother's health and the life of the fetus only if the regulation does not impose an "undue burden" or substantial obstacle to the woman's right to an abortion. The Court has not specifically designed to persuade woman to choose birth over abortion as long as the statute is reasonably related to that purpose and does not put a substantial obstacle to abortion in woman's path. Statute will not impose a substantial obstacle or an undue burden simply b/c it has the incidental effect of making it more difficult or more expensive to obtain abortion.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Scientist in Federally Funded Program

Behavioral scientist engaged in federally funded animal research studies is not a public figure b/c he applies for federal grants and publishes in professional journals.

Bills of Attainder

Bill of attainder is a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct. Past conduct acts to define who those particular persons are. Both federal and state governments are prohibited from passing bills of attainder.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Average Person

Both sensitive and insensitive adults may be included in determining contemporary community standards but children may not be considered part of the relevant audience.

Freedom of Religion - Applicability to States

Both the Establishment and Free Exercise Clauses of the First Amendment apply to the states under the 14th Amendment

15th Amendment - Limitations

Can be limited by other constitutional principles. For example, SC found that 10th Amendment and principles of equal sovereignty among the states require Congress to have extraordinary justification to adopt legislation requiring some, but not all, states to obtain federal approval before changing any voting law.

U.S. Supreme Court Review by Writ of Certiorari

Cases from state courts Cases from U.S. Courts of Appeals

Fundamental Rights - Overview

Certain fundamental rights are protected under the Constitution. If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not others, it is an equal protection problem. The applicable standard in either case is strict scrutiny. Thus, to be valid the governmental action must be necessary to protect a compelling interest.

Fundamental Rights - Right to Vote - Residency Requirements - Nonresidents

Laws that prohibit nonresidents from voting are generally valid as long as they have a rational basis.

Freedom of Speech and Assembly - Government Speech - Public Monuments

City's placement of a permanent monument in public park is government speech and not subject to Free Speech Clause scrutiny. This is true even if the monument is privately donated. By displaying the monument, the government is disseminating a message, and the message is not necessarily the message of the donor(s). As a corollary, gov cannot be forced to display permanent monument with a message with which the gov disagrees, and the gov's refusal to display a proferred monument likewise is not subject to Free Speech scrutiny.

Equal Protection - Alienage Classifications - Quasi-Suspect Classifications

Classifications based on gender or legitimacy are almost always suspect. When analyzing government action based on such classifications, the Court will apply the intermediate standard and strike the action unless it is substantially related to an important government interest.

Foreign Commerce - Commerce Clause

Commerce Clause gives Congress exclusive power to regulate foreign commerce and thus inherently limits a state's power to tax that commerce. Therefore, a state tax applied to foreign commerce must meet all of the Commerce Clause tests that apply to state taxation of interstate commerce. And even if a state tax meets those tests, the tax is invalid if it would (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues.

Unprotected Speech--Regulation or Punishment Because of Content--Some Commercial Speech--Required Disclosures

Commercial speech is protected largely b/c of its value to consumers. Thus, the gov may require commercial advertisers to make certain disclosures if they are not unduly burdensome and they are reasonably related to the state's interest in preventing deception.

No Tax on Commodities in the Course of Interstate Commerce

Commodities in the course of interstate commerce are entirely exempt from local taxation--since each state could otherwise exact a toll as the goods passed through, imposing an intolerable burden on interstate commerce. Thus, states may not levy an ad valorem property tax on commodities being shipped in interstate commerce, even if the goods happen to be in the state on tax day.

Unprotected Speech--Regulation or Punishment Because of Content--Some Commercial Speech--Complete Bans

Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring. Thus, the Court has struck down total bans against advertising: (i) Legal abortions; (ii) Contraceptives; (iii) Drug prices; (iv) Attorneys' services; and (v) Liquor prices. 21st Amendment giving states power to regulate liquor commerce within their borders does not give states power to override First Amendment protections.

The "Taking" Clause - Scope of Taking

Concept of governmental taking probably originally contemplated only physical appropriations of property. Today, however, the term also encompasses some governmental action that significantly damages property or impairs its use. Moreover, even intangibles may be the subject of a taking.

Unduly Coercive (With Regard to Spending Power Conditions)

Condition that goes beyond mere "incentive" and turns into "compulsion" or "undue influence" violates principles of federalism. However, Court has not set out a brightline test for this determination.

Fundamental Rights - Right to Vote - Property Ownership

Conditioning right to vote, to be a candidate, or to hold office on property ownership is usually invalid under EPC since property ownership is not necessary to any compelling governmental interest related to voting. However, certain special purpose elections can be based on property ownership.

Speech or Debate Clause - Scope of Immunity

Conduct that occurs in the regular course of the legislative process and the motivation behind that conduct are immune from prosecution.

Civil Rights and State/Local Government Regulation

Congress MAY use its power under 14th and 15th Amendments to restrict state activities that it determines would violate civil liberties of persons w/in the state.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - One Person, One Vote - Apportionment Among States

Congress apportions representatives among the states "according to their respective number." Congress's good faith choice of method in so apportioning the representatives commands far more deference than state districting decisions and is not subject to the same precise mathematical standard as state plans.

Congressional Removal of 11th Amendment Immunity under 14th Amendment

Congress can remove states' 11th Amendment immunity under its power to prevent discrimination under 14th Amendment. For example, Equal Pay Act--based on 14th Amendment--can serve as basis for fed suits against state by its employees.

Regulation through spending

Congress can use its spending power to "regulate" areas, even where it otherwise has no power to regulate the area, by requiring entities that accept government money to act in a certain manner (i.e., attaching "strings" to government grants).

Congressional Conferral of Standing

Congress cannot complete eliminate case or controversy requirement because the requirement is based in Constitution. However, federal statute may create new interests, injury to which may be sufficient for standing.

Limitation on Powers of Removable Officers

Congress cannot give a government employee who is subject to removal from office by Congress any powers that are truly executive in nature. For this reason, Congress could not give to the Comptroller General (who could be removed from office not only by impeachment by also by a joint resolution of Congress) the function of establishing the amt of automatic budget reductions that would be required if Congress failed to make budget reductions necessary to ensure that the federal budget deficit did not exceed a legislatively established maximum amt.

Freedom of the Press - Broadcasting Regulations - Content-Based Cable Broadcast Regulations

Content-based cable broadcast regulation will be upheld only if it passes muster under the strict scrutiny test.

Removal of Officers by Congress: Limitation on Removal Power

Congress cannot give itself the power to remove an officer charged w/ the execution of laws except through impeachment. Congressional attempt through legislation to remove from government employment specifically named government employees is likely to be held invalid as a bill of attainder.

Suspension of Habeas Corpus for Enemy Combatants - Military Courts & Tribunals

Congress does not have power to deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute for habeas corpus review. A meaningful substitute would allow prisoners to (i) challenge the President's authority to detain them indefinitely, (ii) contest the military commission's findings of fact, (iii) supplement the record on review with exculpatory evidence discovered after the military commission's proceedings, and (iv) request release.

Broad Delegation of Legislative Power

Congress has broad discretion to delegate its legislative power to executive officers and/or administrative agencies, and even delegation of rulemarking power to the courts has been upheld.

Naturalization and Denaturalization - Congressional Control

Congress has exclusive power over naturalization and denaturalization. The SC has held that this grant gives Congress plenary power over aliens.

Is There a Federal Police Power?

Congress has no general police power. Thus, on bar exam, the validity of fed statute cannot rely on the police power. However, Congress can exercise policy power-type powers as to Washington, D.C., pursuant to its power to legislate over the capital under Art. I, section 8, cl. 17, and over all U.S. possession (e.g., territories, military bases, Indian reservations) pursuant to the property power.

Property Power

Congress has power to "dispose or and make all needful rules and regulations respecting the territory or other property belonging to the U.S. Art. IV, section 3. Many other congressional powers (war, commerce, postal, fiscal, etc.) would be unworkable if the ancillary power to acquire and dispose of property of all kinds--real, personal, and intangible--were not also implied from the main grants.

Power to Coin Money and Fix Weights & Measures

Congress has the power to coin money and fix the standard of weights and measures under Art. I, Section 8, Cl. 5.

Patent/Copyright Power

Congress has the power to control the issuance of patents and copyrights under Art. I, Section 8, Clause 8.

Taxing Power

Congress has the power to lay and collect taxes, imposts, and excises, but they must be uniform throughout the U.S. Capitation or other direct taxes must be laid in proportion to the census and direct taxes must be apportioned among the states.

Equal Protection - School Integration - Order Limited

Court may not impose a remedy that goes beyond the purpose of remedying the vestiges of past segregation. Thus, it is impermissible for a court to impose a remedy whose purpose is to attract nonminority students from outside the school district.

Spending Power Conditions - State/Local Government Regulation

Congress may "regulate" states through the spending power by imposing conditions on the grant of money to state or local governments (sometimes referred to as grants with strings attached). Such conditions will not violate 10th Amendment merely because Congress lacked power to directly regulate the activity that is the subject of the spending program if the conditions: (i) Are clearly stated; (ii) Relate to the purpose of the program; and (iii) Are not unduly coercive

Veto Power - Congressional Override

Congress may override veto by two-thirds vote. Every act of Congress must be approved by the President before taking effect, unless passed over his disapproval by two-thirds vote of each house. Art. I, Section 7.

Commerce power

Congress may regulate channels of interstate commerce Congress may regulate instrumentalities of interstate commerce and persons/things in interstate commerce Congress may regulate economic activities with a substantial effect on interstate commerce (in area of non-economic activity, a substantial effect cannot be based on cumulative impact).

Spending Power

Congress may spend to provide for the common defense and general welfare. Art. I, Section 8. Spending may be for any public purpose--not merely the accomplishment of other enumerated powers. However, nonspending regulations are not authorized. Remember that the Bill of Rights still applies to this power; i.e., the federal government could not condition welfare payments on an agreement not to criticize government policies.

Taxing/spending power

Congress may tax & spend for general welfare

Bill of Attainder - Nixon Case

Congress passed legislation to authorize government control of the presidential papers and tape recordings of former President Nixon. SC held that this was not a bill of attainder. The circumstances of the Nixon resignation made him a unique "class of one" as to the need to control his papers. The act was held "nonpunitive" and in pursuance of important public policy.

Freedom of the Press - Broadcasting Regulations - Elimination of Editorial Speech from Stations Receiving Public Grants

Congress violated First Amendment when it forbade any noncommercial educational station receiving a grant from the Corporation for Public Broadcasting from engaging in "editorializing." This was the suppression of speech b/c of its content; the elimination of editorial speech from stations receiving public grants of this type was not narrowly tailored to promote an overriding government purpose regarding the regulation of broadcasting in general or noncommercial broadcasters in particular. Congress could deny persons receiving the federal funds the right to use those funds for editorial activities, but it could not condition the receipt of those funds upon a promise not to engage in any such speech

Insignificant State Involvement - Congressional Grant of Corporate Charter and Exclusive Name

Congressional grant of corporate charter and exclusive use of name is not sufficient to constitute state action.

Judicial Review of Other Branches of Federal Government

Constitution does not explicitly state that the Supreme Court may determine the constitutionality of acts of other branches of government. However, judicial review of other branches of federal government was established in Marbury vs. Madison; Constitution is "law" and it is the province and duty of the judiciary to declare what the law is.

State Action Requirement

Constitution generally prohibits only governmental infringement of constitutional rights. Thus, to find some action unconstitutional, it is generally necessary to attribute the action to the state, which includes government agencies and officials acting under the color of state law. However, this does not mean that the act must be directly by a government actor; "state action" can be found in the actions of seemingly private individuals who (i) perform exclusive public functions, or (ii) have significant state involvement in their activities.

Removal of Officers

Constitution is silent except for ensuring tenure of all Article III judges "during good behavior."

Interstate Compact Clause

Constitution provides that states may enter into agreements or compacts with other states upon the consent of Congress. Art. I, Section 10, cl. 3. However, not all agreements b/n states are compacts requiring congressional consent. Compact Clause reaches only interstate agreements that increase the political power of the states at the expense of federal supremacy. SC has power to interpret such compacts--the member states dco not have final authority over interpretation

Separation of Powers and Finality of Court Decisions

Constitution separates governmental powers among the branches of government. This separation of powers doctrine prohibits the legislature from interfering with the courts' final judgments. However, Congress may change federal statutes and may direct federal courts to apply those changes in all cases in which a final judgment has not been rendered.

Military Courts & Tribunals

Constitutional basis of courts of military justice (trial and review of offenses by military personnel, including courts-martial and reviewing agencies and tribunals)

Political question doctrine

Constitutional violations that the federal courts will not adjudicate, such as: Cases brought under the republican form of government clause (always non-justiciable) Challenges to president's conduct of foreign policy Challenges to impeachment/removal process Challenges to partisan gerrymandering

Contract Clause - Impairment of Contract

Contract Clause limits ability of states to enact laws that retroactively impair contract rights. It does not affect contracts not yet made.

Contract Clause - Basic Impairment Rules - Private Contracts

Contract Clause prevents only substantial impairments of contract (i.e., destruction of most or all of a party's rights under a contract). However, not all substantial impairments are invalid.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - One Person, One Vote - Standardless Recount

Counting uncounted ballots in a presidential election without standards to guide ballot examiners in determining the intent of the voter violates the 14th Amendment EPC

Freedom of Speech and Assembly - Conduct

Court has allowed gov more leeway in regulating conduct related to speech, allowing it to adopt content-neutral, time, place, and manner regulations. Regulations involving public forums must be narrowly tailored to achieve an important government interest. Regulations involving nonpublic forums must have a reasonable relationshi to a legitimate regulatory purpose.

Involuntary Servitude

Court has defined servitude as forcing someone to perform work--whether compensated or not--through the use or threatened use of physical injury or restraint (such as imprisonment), or through the use or threat of legal sanction. Psychological and other forms of coercion alone are generally inadequate to show involuntary servitude. 13th Amendment does not prohibit all forms of labor that one person is compelled to perform for the benefit of another. It does not apply to compulsory military service, civic obligations such as jury duty, convicted prisoners who must perform work as part of their criminal sentence, or even recipients of medical scholarships who are required to work pro bono. However, courts are reluctant to order specific performance of a personal service contract b/c the order would be tantamount to involuntary servitude.

Freedom of Association & Belief - Electoral Process - Ballot Regulation - Signature Requirements

Court has found that the interest of running an efficient election supports a requirement that candidates obtain a reasonable number of signatures to get on the ballot. Similarly, a state's interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of the names and addresses of persons who sign ballot petitions. However, the Court struck down a severe ballot restriction requiring new political parties to collect twice as many signatures to run for county office as for state office.

Establishment Clause - Can Town Board Begin Town Meetings with Prayer?

Court has held that a town board may begin its meetings with prayers led by clergy members listed in the town's congregation directory, even if the clergy is predominately Christian. Court found the practice is consistent with the tradition of legislative prayer and does not discriminate against minority faiths nor coerce the participation of nonadherents, and therefore does not violate Establishment Clause. Constitution requires only that the town is equitable in drawing from available clergy not that it ensure equal representation of all faiths.

Freedom of Speech and Assembly - Mandatory Financial Support - Government Speech

Court has held that compelled financial support of gov speech does not raise First Amendment concerns.

Prior Restraints - Sufficiency of Governmental Interest - Obscenity

Court has held that government's interest in preventing the dissemination of obscenity is sufficient to justify system of prior restraint.

Freedom of the Press - Requiring Members of Press to Testify Before Grand Juries

Court has held that requiring journalist to appear and testify before state or federal grand juries does not abridge freedom of speech or press, despite the claim that such a requirement would so deter the flow of news from confidential sources as to place an unconstitutionally heavy burden on the First Amendment interest in the free flow of information to the public. The Court's opinion refused to create--and even rejected--a conditional privilege not to reveal confidential sources to a grand jury conducting a good faith inquiry.

"Taking" vs. "Regulation" - Use Restrictions - Zoning Ordinances

Court has long held that governments may adopt zoning ordinances that regulate the way real property may b used, pursuant to the police power (e.g., limiting development in a particular area to single-family homes, restricting buildings to a particular height, etc.). Such regulations generally do not amount to a taking--even if they deny an owner the highest and best use of her property--unless they: (i) amount to a physical appropriation, (ii) deny an owner of all economic use, or (iii) unreasonably interfere with distinct, investment-backed expectations.

Equal Protection - Wealth

Court has never held that wealth alone is a "suspect classification." However, the lack of wealth, or the inability to pay a governmentally required fee, cannot be the sole basis upon which a person is deprived of a fundamental constitutional right.

Prior Restraints - Obscenity Cases - Movie Censorship

Court has noted that movies are different from other forms of expression and that time delays incident to censorship are less burdensome for movies than for other forms of expression. Thus, the Court allows governments to establish censorship boards to screen movies before they are released in the community as long as the procedural safeguards are followed. The censor bears the burden of proving that the movie is unprotected speech.

Unprotected Speech--Regulation or Punishment Because of Content--Statutes Must Not Be Vague--Display

Court has suggested that the state may regulate the display of certain material to prevent it from being so obtrusive that an unwilling viewer cannot avoid exposure to it.

Unprotected Speech--Regulation or Punishment Because of Content--Some Commercial Speech--Special Attorney Advertising Rules

Court has upheld prohibitions against in-person solicitation by attorneys for pecuniary gain.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Commercial Privacy--Disclosing Private Performance Can Violate Right to Publicity

Court held that state law could award damages to entertainer who attempted to restrict showing of his act to those who paid admission when a television station broadcast his entire act. Here the "human cannonball" had his entire 15-second act over his objection.

Significant State Involvement - State Authorization (14th Amendment)

Court invalidated state constitutional provision that repealed all existing state laws banning discrimination in the sale or lease of property and prohibited reenactment of such laws in the future b/c such laws "authorize" private discrimination

Significant State Involvement - Official Acts - Discriminatory Law Enforcement

Court reversed conviction of sit-in demonstrators where no statute or ordinance required segregation but mayor and police had announced publicly that they would invoke trespass and breach of the peace laws to enforce a local custom of racial separation in eating places.

Bill of Attainder - Draft Registration Case

Court upheld federal statute denying financial aid for higher education to male students between ages of 18 and 26 who had failed to register for the draft. The law required applicants for the aid to file a statement with their institutions of higher learning certifying their compliance. Failure to register w/in 30 days of one's 18th birthday was a felony, but the regulations allowed men who failed to register in a timely manner to qualify for aid by registering late. The Court found that this was not a bill of attainder. The law reasonably promoted nonpunitive goals and was not a legislative punishment taken on the basis of any irreversible act since aid was awarded to those who registered late. The Court also founc that the statute did not violate the 5th Amendment privilege against self-incrimination.

Equal Protection - Standard of Review - Intermediate Scrutiny

Court uses intermediate scrutiny when a classification based on gender or legitimacy is involved. Under the intermediate scrutiny standard, a law will be upheld if it is substantially related to an important government purpose.

Equal Protection - Standard of Review - Strict Scrutiny

Court uses strict scrutiny when suspect classification or fundamental right is involved. Under strict scrutiny, a law will be upheld only if it is necessary to achieve a compelling or overriding government purpose. The Court will always consider whether less burdensome means for accomplishing the legislative goal are available. Most governmental action examined under this test fails.

Equal Protection - Applicable Standards

Court will apply one of three standards when examining governmental action involving classification of persons: If a suspect classification or fundamental right is involved, the strict scrutiny standard will apply and the action will be struck down unless the government proves that it is necessary to achieve a compelling interest. If a quasi-suspect classification is involved, the Court will likely require gov to prove that the action is substantially related to important gov interest. If any other classification is involved, the action will be upheld unless challenger proves that the action is not rationally related to a legitimate government interest.

The "Taking" Clause - "Public Use" Limitation Liberally Construed

Court will not review underlying policy decisions, such as general desirability for a particular public use or the extent to which property must be taken therefor. A use will be held "public" as long as it is rationally related to a legitimate public purpose., e.g., health, welfare, safety, moral, social, economic, political, or aesthetic ends. Government may even authorize taking by a private enterprise as long as taking will rebound to public advantage (e.g., railroads and public utilities)

Substantive Due Process - Applicable Standards - Mere Rationality - Business & Labor Regulations

Court will sustain all varieties of business regulation; e.g., "blue sky" laws, bank controls, insurance regulation, price and wage controls, unfair competition and trade practice controls, etc.

Establishment Clause - Financial Benefits to Church-Related Institutions - Aid to Colleges, Hospitals, Etc.

Court will uphold gov grant of aid to the secular activity of a religiously affiliated hospital or college (such as grant to build a new hospital ward or lab-classroom building) as long as the gov program requires that the aid be used only for nonreligious purposes, and the recipient so agrees in good faith.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Private Individual Suing on Matter of Public Concern--What is a matter of public concern?

Courts decide on case-by-case basis whether defamatory statement involves matter of public concern, looking at content, form, and context of the publication.

Freedom of Religion - Free Exercise Clause - No Punishment of Beliefs - Courts May Not Find Religious Beliefs to Be False

Courts may not declare a religious belief to be false. For example, if a person says he talked to God and that God said the person should solicit money, he cannot be found guilty of fraud on the basis that God never made such a statement. However, the court may determine whether the person is sincerely asserting a belief in the divine statement.

Relationship Between Substantive Due Process and Equal Protection

DPC and EPC guarantee the fairness of laws--substantive due process guarantees that laws will be reasonable and not arbitrary, and equal protection guarantees that similarly situated persons will be treated alike. Both guarantees require the Court to review the substance of the law rather than the procedures employed. Substantive Due Process: Generally where a law limits the liberty of all persons to engage in some activity, it is a due process question. Equal Protection: Where law treats a person or class of persons differently from others, it is an equal protection question. Since both clauses protect against unfairness, both may be appropriate challenges to the same governmental act, and a discussion of both may be appropriate in an essay answer. On the MBE, however, the examiners probably will not include both as alternatives in the same question.

Fair, Neutral Decisionmaker--Judge Bias

DPC requires judge to recuse himself when he has actual bias or when there is merely a serious risk of actual bias. Serious risk of actual bias exists when "under a realistic appraisal of psychological tendencies and human weakness," the judge's interest poses such a risk of actual bias or prejudice that it must be forbidden.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Private Individual Suing on Matter of Public Concern--IIED

Damage actions by private individuals for IIED are subject to the First Amendment rights of defendants if the speech relates to a matter of public concern, despite its "outrageous" and "particularly hurtful" quality.

Significant State Involvement - State as Lessor for Racially Discriminatory Lessee (14th Amendment)

Delaware was held responsible under 14th Amendment Equal Protection Clause for the exclusion of blacks from coffee shop which was located in a public building. The shop was constructed by and leased from the state. The maintenance of the facility was paid for with public funds and Delaware was able to charge higher rent b/c it allowed restaurant owner to cater to the prejudices of its white customers.

Clear Standard for Delegation of Legislative Power

Delegation will be upheld only if it includes intelligible standards for the delegate to follow. However, as a practical matter almost anything will pass as an "intelligible standard" (e.g., upholding public interest, convenience, or necessity)

Establishment Clause - Can State Legislature Employ a Chaplain?

Despite principle of separation of church and state, the Court has held that a state legislature can employ a chaplain and begin each legislative day with a prayer. This decision was based on the history of the legislative prayer in America.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Question of Fact and Law--Jury Question

Determination of whether material is obscene is a question of fact for the jury. Of coruse, judge can grant DV if the evidence is such that a reasonable, unprejudiced

Quasi-Suspect Classifications - Legitimacy

Distinctions drawn between marital and nonmarital children are reviewed under intermediate scrutiny and must be substantially related to an important governmental objective

Fundamental Rights - Right to Vote - Dilution of Right to Vote - One Person, One Vote

EPC of 14th Amendment has been interpreted to prohibit state dilution of the right to vote, and Art. I has been interpreted to place same type of restriction on the fed gov.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Appeal to Prurient Interest

Dominant theme of material considered as a whole must appeal to the prurient interest in sex of the average person. SC has found this to include that which appeals to shameful or morbid interests in sex but not that which incites lust. For exam purposes, it is probably sufficient to know the standard.

Type of Process - Termination of Parental Status

Due process does not require the appointment of counsel for indigent parents in every case in which the state seeks to terminate parental status (i.e., take children from their parents), but only when "fundamental fairness" requires the appointment. To terminate parental rights, state must prove its allegations of parental neglect or misconduct by clear and convincing evidence.

Procedural Due Process - Protection vs. Creation

Due process provisions do not create property or liberty interests; their purpose is to provide procedural safeguards against arbitrary deprivation. Hence, the 14th Amendment DPC does not, for example, give out-of-state attorneys the right to appear in state courts without meeting a state's bar admission requirements.

Type of Process - Welfare Benefits

Due process requires an evidentiary hearing prior to termination of welfare benefits. It need not be a judicial or quasi-judicial trial if there is adequate post-termination review; but the recipient must have timely and adequate notice of the reasons for the proposed termination, the right to confront adverse witnesses, and the right to present his own arguments and evidence orally. Counsel need not be provided, but must be permitted. Finally, the decision must be based solely on evidence adduced at the hearing and must be rendered by an impartial decisionmaker (thus disqualifying any participant in the termination proposal under review).

Type of Process - Detention of Citizen Enemy Combatants

Due process requires that a citizen held in the U.S. as an "enemy combatant" have a meaningful opportunity to contest the factual basis for his detention before a neutral decisionmaker. However, due process does not forbid some tailoring of the proceedings to alleviate burdens that they may impose on Executive authority during an ongoing military conflict. This may include accepting some use of hearsay, permitting government rebuttable presumptions, and perhaps use of a properly authorized and constituted military tribunal.

Due Process Rights Subject to Waiver

Due process rights are subject to waiver. However, the SC has not clearly defined the standard for determining whether someone has validly waived the right to a hearing before governmental deprivation of liberty or property. Presumably, any such waiver must be voluntary. Additionally, it is possible that a waiver will be valid only if it is made knowingly (with an understanding of the nature of the rights being waived)

Quasi-Suspect Classifications - Legitimacy - Immigration Preference to Legitimate Children

Due to the plenary power over immigration, Court upheld federal law granting immigration preferences to marital children

Equal Protection - Constitutional Source

EPC of 14th Amendment has no counterpart in the Constitution applicable to the federal government; it is limited to state action. Nevertheless, it is clear that grossly unreasonable discrimination by the federal government violates the Due Process Clause of the 5th Amendment. Thus, there are really two equal protection guarantees. Court usually applies the same standards under either constitutional provision.

13th Amendment - Congressional Power

Enabling clause of 13th Amendment gives Congress the power to adopt appropriate legislation, and the Supreme Court apparently will uphold legislation proscribing almost any private racially discriminatory act that can be characterized as a "badge or incident of slavery."

Who Is the Executive Power Vested In?

Entire "executive power" is vested in the President by Art. II, Section 1 of the Constitution. Various executive functions may be and are delegated w/in the "executive branch" by the President or by Congress.

Equal Protection - Where There Has Been No Past Discrimination by Government

Even where a state or local government has not engaged in past discrimination, it may have a compelling interest in affirmative action. However, the governmental action must be narrowly tailored to that interest.

Establishment Clause - General

Establishment Clause, along with the Free Exercise Clause, compels gov to pursue a course of neutrality toward religion. Gov action challenged under the Establishment Clause will be found invalid unless the action: (i) Has a secular purpose; (ii) Has a primary effect that neither advances nor inhibits religion; and (iii) Does not produce excessive government entanglement with religion. This is referred to as the Lemon test.

Implied Preemption

Even if federal law does not expressly prohibit state action, state laws will nevertheless be held impliedly preempted if they actually conflict with federal requirements, they prevent achievement of federal objectives, or Congress has preempted the entire field.

Significant State Involvement - Official Acts - Apparent Legal Authority

Even if state forbids officers from acting in a certain way (e.g., depriving persons of constitutional rights), the forbidden action may still constitute state action if the state puts the actor in a position to commit the unconstitutional act.

Limitations on Statutory Regulation (SC Appellate Jxn)

Ex Parte McCardle has been read as giving Congress full power to regulate and limit SC's appellate jxn. However, possible limitations on such power have been suggested: 1) Congress may eliminate specific avenues for SC review as long as it does not eliminate all avenues. For example, in McCardle, two statutes had allowed SC to grant habeas corpus to federal prisoners. SC upheld constitutionality of repeal of one of the statutes b/c the other statute remained as an avenue for SC habeas corpus review. 2) Although Congress may eliminate SC review of certain cases w/in the federal judicial power, it must permit jxn to remain in some lower court. 3) If Congress were to deny all SC review of an alleged violation of constitutional rights--or go even further and deny a hearing b/f any federal judge on such claim--this would violate due process.

Substantive Due Process - Applicable Standards - Mere Rationality

Except in cases where a fundamental right is involve,d the mere rationality test applies and the law will be upheld if it is rationally related to any conceivable legitimate end of government.

Executive agreement vs. statute

Executive agreements prevail over conflicting state laws but never over conflicting federal laws or Constitution.

When Executive Agreement Conflicts w/ Other Governmental Action

Executive agreements that are not consented to by the Senate are not the "supreme law of the land." Thus, conflicting federal statutes and treaties will prevail over an executive agreement, regardless of which was adopted first. However, executive agreements prevail over conflicting state laws.

Executive Privilege

Executive privilege is not a constitutional power but rather is an inherent privilege necessary to protect the confidentiality of presidential communications.

U.S. Supreme Court Appeal

Exists for decisions of three-judge federal district courts

Significant State Involvement - Entwinement of State and Private Entities (14th Amendment)

Fact that state entity helps formulate and adopts the rules of private entity, and chooses to follow the order of the private entity pursuant to those rules, does not convert the private entity's action into state action. However, state may be so entwined with a private organization that the organization's actions will be considered state action.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Lacking in Serious Social Value

Fact that the material may have some redeeming social value will not necessarily immunize it from a finding of obscenity. It must have serious literary, artistic, political, or scientific value, using a national standard.

Executive Privilege - Screening Papers and Recordings of Former President

Fed statute requiring Administrator of General Services to screen presidential papers is valid notwithstanding the privilege

Admiralty Power - Navigable Waterways

Federal admiralty power attaches to all navigable waterways--actually or potentially navigable--and to small tributaries that affect navigable waterways. The federal maritime power is not limited to tidewaters or interstate waters.

Freedom of Religion - Free Exercise Clause - No Punishment of Beliefs - Religious Oaths for Governmental Jobs Prohibited

Fed gov may not require any fed office holder or employee to take an oath based on a religious belief as a condition for receiving the federal office or job because such a requirement is prohibited by Art. VI of the Constitution. State and local governments are prohibited from requiring such oaths by the Free Exercise Clause.

Bar Membership and Public Employment - Restraints on Speech Activities of Government Employees - Participation in Political Campaigns

Fed gov may prohibit fed executive branch employees from taking an active part in political campaigns. The rational is twofold: to further nonpartisanship in administration and to protect employees from being coerced to work for the election of their employers.

Procedural Due Process - Intentional Deprivation vs. Negligent Deprivation

Fair process is required for intentional acts of the government or its employees. If an injury is caused to person through mere negligence of government employee, there is no violation of the DPC.

Unprotected Speech--Regulation or Punishment Because of Content--Some Commercial Speech

False advertising is not protected by the First Amendment, although commercial speech in general does have some First Amendment protection. In determining whether regulation of commercial speech is valid, SC asserts that it uses a four-step process. However, it may be easiest ot think about this as an initial question followed by a three-step inquiry. First, determine whether the commercial speech concerns a lawful activity and its not misleading or fraudulent. Speech proposing an unlawful transaction and fraudulent speech may be outlawed. If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it: (i) serves a substantial government interest; (ii) directly advances the asserted interest; and (iii) is narrowly tailored to serve the substantial interest. This part of the does does not require that the least restrictive means be used. Rather, there must be a reasonable fit between the legislation's end and the means chosen.

Hearings for Men Who Seek to Establish Paternity - Father Who Never Tried to Establish Paternity

Father of nonmarital child who has never attempted to establish a legal or personal relationship with the child has no right to notice prior to adoption of the child by other persons.

Declaratory Judgments (compare w/ advisory opinion)

Fed courts can hear actions for declaratory relief. A case or controversy will exist if there is an actual dispute b/n parties having adverse legal interest. Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests. However, the fed courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.

Establishment Clause - Exemptions from Antidiscrimination Laws

Fed gov may exempt religious organizations from the fed statutory prohibition against discrimination in employment on the basis of religion, at least regarding their nonprofit activities. Thus, a janitor can be discharged from his employment at a gymnasium owned by a religious organization because he was not a member of that religious organization.

Abstention--Unsettled State law

Federal courts may not enjoin pending state court proceedings. When fed constitutional claim is premised on an unsettled question of state law, fed court should stay its hand ("abstain" temporarily), so as to give sate courts a chance to settle the underlying state law question and avoid needless resolution of fed constitutional issue.

Express Preemption

Federal law may expressly provide that the states may not adopt laws concerning the subject matter of the federal legislation. Note, however, that an express preemption clause will be narrowly construed.

Abortion - Partial Birth Abortion Ban

Federal law prohibiting "intact D&E" does not on its face impose an undue burden where other abortion procedures are available, the law includes specific anatomical standards and an exception to protect the woman's life, and there is uncertainty within the medical profession about whether banning the intact D&E procedure creates a significant health risk for women. Although the Court generally upheld the statute, it also held that the statute could not be applied in situations wherein the woman's health would be endangered.

Federal Review of State Acts

Federal review of state acts was established by the Marshall Court in a series of decisions. Clear basis exists in the Supremacy Clause of Article VI, which states that the Constitution, Laws, and Treaties of the U.S. take precedence over state laws and that the judges of the state courts must follow federal law, anything in the constitution or laws of any state to the contrary notwithstanding.

Bill of Rights - General

First 10 Amendments to the Constitution are the most important source of limitations on the federal government's power. Bill does not apply to states, although most of its safeguards have been held applicable to states through the 14th Amendment Due Process Clause.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--True Privacy Actions--Copyright Infringement

First Amendment does not require an exception to copyright protection for material written by a former President or other public figures. Magazines have no right to publish such copyrighted material beyond the statutory fair use exception

Freedom of the Press - Broadcasting Regulations - Political Advertisements

First Amendment does not require broadcasters to accept political advertisements

Bar Membership and Public Employment - Restraints on Speech Activities of Government Employees - Patronage

First Amendment freedoms of political belief and association forbid the hiring, promotion, transfer, firing, or recall of a public employee b/c of the person's political views or political party affiliation unless the hiring authority demonstrates that party affiliation or beliefs are appropriate requirements for the effective performance of the public office involved, e.g., "policymaking" or "confidential" nature of work.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Actual Malice--Petition Clause Does Not Protect Defamatory Statement Made with Actual Malice

First Amendment guarantees individuals the right to "petition government for redress of grievances." However, this right to petition the government does not grant absolute immunity to persons who make defamatory statements about public officials or public figures in their communications with government officials.

Freedom of Religion - Constitutional Provision

First Amendment provides "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

Bar Exam Approach for Questions Involving Regulation Affecting Free Flow of Interstate Commerce

First, see if the question refers to any federal legislation that might be held either to: (i) supersede the state regulation or preempt the field, or (ii) authorize state regulation otherwise impermissible. Second, if neither of these possibilities is dispositive, ask if the state legislation either discriminates against interstate or out-of-state commerce. If the legislation is discriminatory, it will be invalid unless (i) it furthers an important state interest and there are no reasonable nondiscriminatory alternatives, or (ii) the state is a market participant. If the legislation does not discriminate but burdens interstate commerce, it will be invalid if the burden on commerce outweighs the state's interest. Consider whether there are less restrictive alternatives.

Bar Membership and Public Employment - Disclosure of Associations

Forcing disclosure of Fist Amendment activities as a condition of public employment, bar membership, or other public benefits may have a chilling effect. Thus, the state cannot force every prospective government employee to disclose every organizational membership. Such a broad disclosure has insufficient relation to loyalty and professional competence, and the state has available less drastic means to achieve its purpose.

Bill of Rights--Rights Not Applicable to States

Four provisions of Bill of Rights that have not yet been incorporated into the DPC: (i) Third Amendment prohibition against quartering troops in a person's home; (ii) Fifth Amendment right to grand jury indictment in criminal cases; (iii) Seventh Amendment right to jury trial in civil cases and (iv) Eighth Amendment right against excessive fines

Freedom of Religion - Free Exercise Clause - States Can Regulate General Conduct - Criminal Laws and Other Regulations - Generally No Exemptions Found

Free Exercise Clause does not require exemptions from criminal laws or other governmental regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. In other words, a law that regulates the conduct of all persons can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law.

Freedom of Religion - Free Exercise Clause - No Punishment of Beliefs

Free Exercise Clause prohibits government from punishing (denying benefits to, or imposing burdens on) someone on the basis of the person's religious beliefs. It is sometimes said that the gov can engage in such activity only if necessary to achieve a compelling interest; sometimes the rule is stated as a total prohibition of such gov actions. SC has never found interest so compelling that it would justify punishing a religious belief.

Freedom of Speech and Assembly - Government Speech

Free Speech Clause restricts gov regulation of private speech; it does not require the gov to aid private speech nor restrict the gov from expressing its views. Gov generally is free to voice its opinions and to fund private speech that furthers its views while refusing to fund other private speech, absent some other constitutional limitation, such as the Establishment Clause or EPC. B/c gov speech does not implicate the 1st Amendment, it is not subject to the various levels of scrutiny that apply to gov regulation of private speech.

Freedom of Speech and Assembly - Freedom Not to Speak - Shopping Center

Freedom not to speak does not prohibit state's requiring large shopping center (open to the public) to permit persons to exercise their speech rights on shopping center property--at least as long as the particular message is not dictated by the state and is not likely to be identified with the owner of the shopping center.

Freedom of Speech and Assembly - General Principles

Freedoms of speech and assembly protect the free flow of ideas, a most important function in a democratic society. Thus, whenever the government seeks to regulate these freedoms, the Court will weigh the importance of these rights against the interest or policies sought to be served by the regulation.

Full Faith & Credit Clause

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. By virtue of this clause, if a judgment is entitled to full faith and credit, it must be recognized in sister states. However, not every decision is entitled to full faith and credit. Although the Clause itself governs only recognition of state judgments in sister states, a federal statute provides for recognition of state judgments in federal courts as well.

Substantive Due Process - Fair Notice

Fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is forbidden or required. Regulation that fails to give fair notice violates the DPC.

Quasi-Suspect Classifications - Gender - Intentional Discrimination against Women

Gender classifications that intentionally discriminate against women will generally be invalid under the intermediate standard because the government is unable to show the "exceedingly persuasive justification" that is required.

U.S. Supreme Court Final Judgment Rule

Generally Supreme Court may hear cases only after a final judgment of highest state court, U.S. Court of Appeals, or a three-judge federal district court

Abstention - pending state proceedings

Generally, fed courts will not enjoin pending state criminal proceedings. State court proceedings are pending if begun before federal court begins proceedings on merits. Hence, order of filing charges is irrelevant. Proceedings of substance must occur first in fed court before an injunction will issue. Fed courts should abstain from enjoining pending state administrative or civil proceedings when those proceedings involve an important state interest. EXCEPTION: An order enjoining state proceedings will be issued in cases of proven harassment or prosecutions taken in bad faith (without hope of a valid conviction)

"Taking" vs. "Regulation" - Use Restrictions - Decreasing Economic Value

Generally, regulations that merely decrease the value of property (e.g., prohibit its most beneficial use) do not necessarily result in a taking, as long as they leave an economically viable use for the property. The Court considers (i) the social goals sought to be promoted; (ii) the diminution in value to the owner; and (iii) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Schools

Generally, schools and school-sponsored activities are not public forums. Thus, speech (and association) in schools may be reasonably regulated to serve the school's educational mission.

Freedom of the Press - Publication of Truthful Information

Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order. The right applies even if the information has been unlawfully obtained in the first instance, as long as (i) the speech relates to a matter of public concern, (ii) the publisher did not obtain it unlawfully or know who did, and (iii) the original speaker's privacy expectations are low.

Establishment Clause - Sect Preference

Gov action that prefers one religious sect over others violates the Establishment Clause, at least if such action is not necessary to achieve a compelling interest. The Court generally will not even resort to the Lemon test in such a case, although such action would fail the first two prongs of the Lemon test because if the government is favoring one religious sect, it is acting with the purpose of and having the primary effect of aiding that religion.

Bar Membership and Public Employment - Restraints on Speech Activities of Government Employees - Petition Clause Claims

Gov employee's right under the First Amendment to petition the gov for redress--unless a gov employee's grievance relates to a matter of public concern, it is not a constitutionally protected activity, and the employee may not bring a constitutional tort suit under 42 USC 1983 alleging that his employer took retaliatory actions in violation of the employee's right to petition.

Freedom of the Press - Access to Trials - Compelling Interest in Protecting Children

Gov has compelling interest in protecting children who are victims of sex offenses. Portions of trials wherein such children testify may be closed to the public and press, but only if the trial court finds that such closure is necessary to protect the child in the individual case. State statute, however, violates First Amendment if it requires closure of the trial during testimony of child victim of sex offense without a finding of necessity by trial judge.

Fundamental Rights - Right to Vote - Candidates and Campaigns - Funding, Contributions, Expenditures

Gov may allocate more public funds to the two "major" parties than to "minor" parties for political campaigns, and may withhold public funding from candidates who do not accept reciprocal limits on their total campaign expenses; but such expenses cannot otherwise be limited, unlike campaign contributions to political candidates, which may be limited if government chooses.

Establishment Clause - Financial Benefits to Church-Related Institutions - Recipient-Based Aid

Gov may give aid in the form of financial assistance to a defined class of persons as long as the class is defined without reference to religion or religious criteria. Such a program is valid even if persons who receive the financial assistance are thereby enabled to attend a religiously affiliated school.

Freedom of Association & Belief - Electoral Process - Limits on Expenditures

Gov may limit amount that a person is permitted to contribute to another's campaign. However, the government may not limit the amount that a person expends on his own campaign. Neither may the gov limit the amount that a person spends to get a candidate elected, as long as the expenditures are not contributed directly to the candidate nor coordinated with that of the candidate--i.e., the expenditures must be independent of the candidate and not disguised contributions. Thus, corporations, unions, etc., may spend whatever they desire to get a candidate elected.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Simulated Pictures of Minors

Gov may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that in fact uses young-looking adults or computer-generated images.

Freedom of Association & Belief - Electoral Process - Limits on Contributions - To Ballot Referendum Committee

Gov may not limit contributions to a political committee that supports or opposes a ballot referendum (as opposed to one that supports a political candidate). Such a limitation on contributions to influence referendum elections violates the freedoms of speech and association.

Freedom of Association & Belief - Electoral Process - Limits on Contributions - Aggregate Contribution Limits Unconstitutional

Gov may not limit the aggregate amount one person or entity contributes to political candidates or committees during an election even though it may limit the amount given to a single candidate. Aggregate limits violate the First Amendment's protection of political speech b/c unlike individual contribution limits, they do not further the government's interest in preventing quid pro quo corruption or the appearance of such, and they seriously restrict participation in the democratic process. Spending large sums of money in connection with elections but not in an effort to control the exercise of a specific officeholder's duties, does not give rise to such corruption, nor does the possibility that the contributor may garner "influence over or access to" elected officials or political parties.

Fundamental Rights - Right to Vote - Extraordinary Majorities--Referendum Elections

Gov may require a supermajority vote for voter referendums, even though such a requirement might give a minority disproportionate power.

Freedom of Association & Belief - Electoral Process - Limits on Contributions - Disclosure of Contributors or Recipients of Money

Gov may require political party or committee to disclose the names of the contributors or recipients of money to or from the party or committee. However, if the party or committee can show a "reasonable probability" that disclosure will cause harm to the party, committee, or private individuals, they have a First Amendment right to refuse to make such disclosures.

Bar Membership and Public Employment

Gov often requires persons who accept government jobs to submit to loyalty oaths and refraim from certain conduct (e.g., campaigning). Such regulations often impact upon the freedom of speech and association.

Establishment Clause - Religious Activities in Public Schools - Curriculum Controls

Gov statute or regulation that modifies a public school curriculum will violate the Establishment Clause if it fails the secular purpose test, primary effect test, or excessive government entanglement test.

"Taking" vs. "Regulation" - Actual Appropriation or Physical Invasion - Damage from Temporary Interference with Use

Government action that amounts to temporary appropriation or physical invasion of property may amount to a taking.

Equal Protection - "Benign" Government Discrimination - Affirmative Action

Government action--whether by federal, state, or local governmental bodies--that favors racial or ethnic minorities is subject to strict scrutiny, as is government action discriminating against racial or ethnic minorities.

Quasi-Suspect Classifications - Gender

Government bears burden of proof in gender discrimination cases, and an exceeding persuasive justification is required in order to show that gender discrimination is substantially related to an important government interest.

Freedom of Speech and Assembly - Mandatory Financial Support - University Activity Fees

Government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups whose beliefs are offense to the student, as long as the program is viewpoint neutral

"Taking" vs. "Regulation" - Use Restrictions - Permit Denials

Government's demand for property with respect to a land-use permit application must satisfy the Nollan/Dolan requirements even when the government denies a permit. Refusal to issue a permit based on refusal to dedicate land under terms that do not satisfy the nexus and/or proportionality requirements of Nollan and Dolan constitutes a taking.

Insignificant State Involvement - Licensing and Provision of Essential Services

Granting a liquor license and providing essential services (police, fire, water, power, etc.) to a private club that imposes racial restrictions on its members and guests are not sufficient to constitute state action.

Freedom of Speech and Assembly - Void for Vagueness - Funding Speech Activity

Greater imprecision is allowed when government acts as a patron in funding speech activity than when enacting criminal statutes or regulatory schemes because speakers are less likely to steer clear of forbidden areas when only a subsidy is at stake.

Implied preemption

If federal and state laws are mutually exclusive, federal law preempts state law If state law impedes achievement of federal objective, federal law preempts state law If Congress evidences a clear intent to preempt state law, federal law preempts state law

State Regulation in the Absence of Congressional Action

If Congress has not enacted laws regarding the subject, state or local government may regulate local aspects of interstate commerce if the regulation: (i) Does not discriminate against out of state competition to benefit local economic interests; and (ii) Is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation) If either test is not met, regulation will be held void for violating the Commerce Clause (sometimes called the "Dormant Commerce Clause" or "Negative Commerce Clause" under such circumstances

Establishment Clause - Displays of 10 Commandments on Public Property

If a display of the 10 Commandments is shown to have a predominantly religious purpose, it violates the Establishment Clause; otherwise, the 10 Commandments may be displayed.

Equal Protection - Suspect Classifications - Race and National Origin

If a governmental action classifies persons based on exercise of a fundamental right or involves a suspect classification (race, national origin, or alienage), strict scrutiny is applied. The result is invalidation of almost every case where the classification would burden a person b/c of her status as a member of a racial or national origin minority. The only explicit race discrimination upheld despite strict scrutiny was the wartime incarceration of U.S. citizens of Japanese ancestry on the West Coast.

Ex Post Facto - What Is "Criminal"

If a law's purpose is civil rather than punitive, it is not an ex post facto law unless its effect is so clearly punitive as to negate the legislature's intention

Freedom of Speech and Assembly - Statutes Valid on Face

If a licensing statute is valid on its face b/c it contains adequate standards, a speaker may not ignore the statute, but must seek a permit. If he is denied a permit, even if he believes the denial was incorrect, he must then seek reasonably available administrative or judicial relief. Failure to do so precludes later assertion that his actions were protected by the First Amendment.

Regulations Requiring Local Operations (Commerce Clause)

If a state law requires a business to perform specific business operations in the state to engage in other business activity in the state, the law will normally be held invalid as an attempt to discriminate against other states where the business operations could be performed more efficiently

Discriminatory Taxes - Finding Discrimination - Tax Singles Out Interstate Commerce

If a state tax singles out interstate commerce for taxation, the Court ordinarily will not "save" the tax by finding other state taxes imposed only on local commerce. NOTE: However, state taxes that single out interstate commerce are considered nondiscriminatory if the particular statutory section or scheme also imposes the same type of tax on local commerce.

Freedom of Speech and Assembly - Unlimited Discretion

If a statute gives licensing officials unbridled discretion it is void on its face, and speakers need not even apply for a permit. They may exercise their First Amendment rights even if they could have been denied a permit under valid law, and they may not b epunished for violating the licensing statute.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Buffer Zones - Injunctions - Content Based

If an injunction is content based, it will be upheld only if necessary to achieve a compelling governmental interest.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Buffer Zones - Injunctions - Content Neutral

If an injunction is content neutral, it will be upheld only if it burdens no more speech than is necessary to achieve an important government purpose.

Apportionment Requirement - Tax on Instrumentalities Used to Transport Goods Interstate

If an instrumentality has only one situs, the domiciliary state can tax at full value. If the instrumentality has more than one taxable situs, a tax apportioned on the value of the instrumentality will be upheld only if it fairly approximates the average physical presence of the instrumentality within the taxing state. The taxpayer has the burden of proving that an instrumentality has acquired a taxable situs outside his domiciliary state.

Freedom of Speech and Assembly - Void for Vagueness

If criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the DPC. This principle is applied somewhat strictly when 1st Amendment activity is involved in order to avoid the chilling effect a vague law might have on speech (i.e., if it is unclear what speech is regulated, people might refrain from speech that is permissible for fear that they will be violating the law). Vagueness issues most often arise in relation to content regulations, but the same principles would apply to time, place, and manner restrictions.

Mootness

If events after filing lawsuit end plaintiff's injury, case must be dismissed as moot. A real, live controversy must exist at all stages of review.

Validity of Irrebuttable Presumptions

If gov presumes facts against person so that she is not qualified for some important benefit or right, irrebuttable presumption may be unconstitutional. Although the Court often characterizes this as a due process question, it is more accurately an equal protection question b/c the gov is creating an arbitrary classification. In any case, if the presumption affects a fundamental right (e.g., right to travel) or a suspect or quasi-suspect classification (e.g., gender), it will likely be invalid under strict scrutiny or intermediate scrutiny analysis b/c the administrative convenience created by the presumption is not an important enough interest to justify the burden on the right or class. If some other classification or right is involved, the presumption will likely be upheld under the rational basis standard.

"Taking" vs. "Regulation" - Use Restrictions - Denial of ALL Economic Value of Land

If government regulation denies landowner of all economic use of his land, the regulation is equivalent to a physical appropriation and thus a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable.

Equal Protection - Remedying Intentional School Segregation

If it is proven that a school board has engaged in the racial districting of schools, the board must take steps to eliminate the effects of that discrimination (e.g., busing students). If the school board refuses to do so, a court may order the school district to take all appropriate steps to eliminate the discrimination

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Private Individual Suing on Matter of Public Concern--Presumed or Punitive Damages

If plaintiff establishes that defendant made the statement with actual malice, the actual damage requirement is extinguished. Plaintiff can recover whatever damages are permitted under state law (usually presumed damages and even punitive damages in appropriate cases). In other words, there is no constitutional protection for statements made with actual malice even though a matter of public concern is involved.

Bar Membership and Public Employment - Restraints on Speech Activities of Government Employees - Speech Not Made Pursuant to Official Duties

If speech is not made pursuant to employee's official duties, two tests apply. If a gov employee's speech does not involve a matter of public concern, the courts give the gov employer a wide degree of deference and allow the employer to punish the employee if the speech was disruptive of the work environment. However, if a matter of public concern is involved, courts must balance the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in efficient performance of public service.

Independent and Adequate State Grounds

If state court decisions rests on two grounds, one state law and one federal law, if the Supreme Court's reversal of the federal law ground will not change result in case, Supreme Court cannot hear it. Nonfederal grounds must be "adequate" in that they are fully dispositive of the case so that even if the federal grounds are wrongly decided, it would not effect the outcome of the case. Independent: If state court's interpretation of its state provision was based on fed case law interpreting an identical fed provision, the state law grounds for the decision are not independent. If it is unclear whether the state court decision turned on fed or state law, the SC may dismiss the case or remand it to the state court for clarification. However, the court will usually assume that there is no adequate state ground unless the state court expressly stated that its decision rests on state law.

Important Liberty Interests (Delegation of Legislative Power)

If the delegate interferes with the exercise of a fundamental liberty or right, the burden falls upon the delegate to show that she has the power to prevent the exercise of the right and her decision was in furtherance of that particular policy.

Hearings for Men Who Seek to Establish Paternity - Unmarried Father Living with Mother

If the father of a nonmarital child is part of a "family unit" that includes the child, the relationship b/n the father and child will be protected by due process.

Establishment Clause - Permissible Holidays

If the gov maintains a holiday-Christmastime display that does not appear to endorse religion, the display will survive review under the three-party Establishment Clause test. If a government's holiday display includes religious symbols (e.g., a nativity scene or a menorah) as well as other holiday decorations (e.g., a Christmas tree or a Santa Claus figure), the courts will hold that the display: (i) has a secular purpose (based on the history of government recognition of holidays); (ii) has a primary nonreligious effect (it does not endorse religion); and (iii) does not create excessive entanglement between government and religion. If the display includes only the religious symbols, it will violate the Establishment Clause b/c it has a religious effect (it "endorses" religion)

Bar Membership and Public Employment - Disclosure of Associations - Fifth Amendment Limitation

If the job candidate refuses to answer on a claim of the privilege against self-incrimination, denial of the job violates the Fifth and Fourteenth Amendments. However, if individuals are ordered by appropriate authorities to answer questions "specifically, directly, and narrowly relating to their official duties," and they refuse to do so by claiming the privilege against self-incrimination, they may be denied the job or discharged without violating the Fifth Amendment, if they were given immunity from the use of their answers or the fruits thereof in a criminal prosecution.

Procedural Due Process - Property - Continued Public Employment

If there is a state statute or ordinance that creates a public employment contract, or there is some clear practice or mutual understanding that an employee can be terminated only for "cause," then there is a property interest; but if the employee holds his position only at "will" of the employer, there is no property interest in continued employment.

Persons Covered Under Speech or Debate Clause

Immunity extends to aides who engage in acts that would be immune if performed by a legislator. NOTE: Speech or Debate Clause does not extend to state legislators who are prosecuted for violation of federal law.

State Taxation of "Exports" Prohibited

Import-Export Clause prohibits states from imposing any tax on goods after they have entered the "export stream."

State Taxation of "Imports" Prohibited Absent Congressional Consent

Import-Export Clause prohibits the states from imposing any tax on imported goods as such or on commercial activity connected with the imported goods as such (i.e., taxes discriminating against imports), except with congressional consent.

Equal Protection - Standard of Review - Intermediate Scrutiny - Burden of Proof

It is unclear who has the burden of proof when the Court uses intermediate scrutiny but in most cases, it appears to be the government

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Actual Malice--Permitted Inquiries by Plaintiff

In attempting to prove knowing or reckless disregard of the truth, plaintiff may inquire into the state of mind of those who edit, produce, or publish

Establishment Clause - Cases Unconnected to Financial Aid or Education

In cases unconnected to financial aid or education, a good rule of thumb is that a law favoring or burdening religion or a specific religious group in particular will be invalid, but a law favoring or burdening a larger segment of society that happens to include religious groups will be upheld.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Question of Fact and Law--Evidence of Pandering

In close cases, evidence of "pandering"--commercial exploitation for the sake of prurient appeal--by defendant may be probative on whether the material is obscene. Such evidence may be found in defendant's advertising, his instructions to authors and illustrators of the material, or his intended audience. In effect, this simply accepts the purveyor's own estimation of the material as relevant.

Freedom of Speech and Assembly - Government Speech - Government Funding of Private Messages

In contrast to government funding of speech for the purpose of promoting its own policies, when government chooses to fund private messages, it generally must do so on a viewpoint neutral basis. EXCEPTION: Funding of the arts--from a financial standpoint, gov cannot fund all artists, and choosing among those it will fund and those it will not inevitably must be based on content of the art

Executive Privilege - Criminal Proceedings

In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is shown.

Taxable Situs ("Nexus") - Tax on Instrumentalities Used to Transport Goods Interstate

In general, an instrumentality has a taxable situs in a state if it receives benefits or protection from the state. An instrumentality may have more than one taxable situs, upon each of which states can impose a tax subject to the required apportionment

Equal Protection - Discriminatory Application

In some instances, a law that appears to be neutral on its face will be applied in a different manner to different classes of persons. If the persons challenging the governmental action can prove that the government officials applying the law had a discriminatory purpose (and used discriminatory standards based on traits such as race or gender), the law will be invalidated.

Standing to enforce government statutes - zone of interests

In some instances, plaintiff may bring suit to force government actors to conform their conduct to the requirements of specific federal statute. Even in such cases, the person must have an injury in fact. Often, court asks whether injury caused to individual or group seeking to enforce fed statute is w/in the zone of interests that Congress meant to protect w/ the statute. If Congress intended statute to protect such persons, and intended to allow private persons to bring fed court actions to enforce the statute, courts are likely to be lenient in granting standing to those persons.

Fundamental Rights - Right to Refuse Medical Treatment - Vaccination

Individual can be made to submit to vaccination against contagious diseases b/c of the governmental and societal interest in preventing the spread of disease

Fundamental Rights - Right to Travel - Interstate Travel - Nature of the Right

Individuals have a fundamental right to travel from state to state, which encompasses the right: (i) to leave and enter another state, and (ii) to be treated equally if they become permanent residents of that state.

Are corporations protected under 14th Amendment P&I Clause?

No. Corporations are not citizens and are not protected.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Buffer Zones - Injunctions

Injunctions that restrict First Amendment activity in public forums are treated differently from generally applicable ordinances b/c injunctions present a greater risk of censorship and discriminatory application. The test to be used to determine whether an injunction that restricts speech or protest is constitutional depends on whether the injunction is content neutral

Suits Against State Officers are Allowed

Injunctive relief Money damages to be paid out of own pockets (may not be sued if state treasury will be paying retroactive damages)

Procedural Due Process - Liberty - Injury to Reputation

Injury to reputation in itself is not a deprivation of liberty or property. However, if governmental acts (such as a statement of reasons given for termination of public employment) so injure a person's reputation that he will have lost significant employment or associational opportunities, there is a loss of liberty.

Quasi-Suspect Classifications - Gender - Intentional Discrimination Against Men

Intentional discrimination against men generally is invalid. However, a number of laws have been held valid as being substantially related to an important government interest.

What rights are protected under Art. IV P&I

Interstate P&I Clause prohibits discrimination by state against nonresidents when the discrimination concerns "fundamental rights"--i.e., rights relating to important commercial activities (such as pursuit of a livelihood) or civil liberties. However, the Clause applies only if the discrimination is intentionally protectionist in nature.

When Does Interstate Transportation Begin? (Course of Interstate Commerce)

Interstate transportation beings when (i) the cargo is delivered to an interstate carrier (the shipper thereby relinquishing further control), OR (ii) the cargo actually starts its interstate journey. Goods merely being prepared for transit are not in the course of interstate commerce.

Standing

Is plaintiff the proper party to bring matter to court for adjudication?

Abortion - Spousal Consent

It is an undue burden to require woman to sign statement that she has notified her spouse that she is about to undergo an abortion

Bar Membership and Public Employment - Loyalty Oaths

It is permissible for the federal government to require employees and other public officers to take loyalty oaths. However, such oaths will not be upheld if they are overbroad (i.e., prohibit constitutionally protected activities) or are vague so that they have a chilling effect on First Amendment activities

Freedom of Speech and Assembly - Content

It is presumptively unconstitutional for gov to place burdens on speech b/c of its content. To justify such content-based regulation of speech, the government must show that the regulation (or tax) is necssary to serve a compelling state interest and is narrowly drawn to achieve that end.

Unprotected Speech--Regulation or Punishment Because of Content--Some Commercial Speech--Commercial Sign Regulation

It is unclear whether billboards may be totally banned from a city. However, they can be regulated for purposes of traffic safety and aesthetics.

Substantive Due Process - Applicable Standards - Mere Rationality- Punitive Damages - Factors Considered

Key issue is whether defendant had fair notice of the possible magnitude of the punitive damages. In assessing such notice, the Court will look to: (i) Reprehensibility of defendant's conduct; (ii) Disparity b/n actual or potential harm suffered by plaintiff and the punitive award; and (iii) Difference b/n the punitive damages award and criminal or civil penalties authorized for comparable misconduct. Except for particularly egregious conduct--especially when the conduct resulted in only a small amount of compensatory damages--punitive damages should not exceed 10 times the compensatory damages.

11th Amendment Immunity Summary

Key principle is that 11th Amendment will prohibit fed court from hearing claim for damages against state government (although not against state officers) unless: 1) State has consented to allow lawsuit in fed court; 2) Plaintiff is the U.S. or a state; or 3) Congress has clearly granted fed courts authority to hear specific type of damage action under 14th Amendment

Unprotected Speech--Regulation or Punishment Because of Content--Statutes Must Not Be Vague--Land Use Regulations

Land use (or zoning) regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (e.g., rise in crime rates, drop in property values and neighborhood quality, etc). However, regulations may not ban such establishments altogether.

Prior Restraints - Obscenity Cases - Seizure of Books and Films - Large Scale Seizures

Large scale seizures of allegedly obscene books and films--to destroy them or block their distribution or exhibition"--must be preceded by a full adversary hearing and judicial determination of obscenity

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Alternative Channels

Law must leave open alternative channels of communication; i.e., other reasonable means for communicating the idea must be available.

Freedom of Association & Belief - Electoral Process - Regulations of Core Political Speech - Election Day Campaigning - 100 Foot Limit

Law prohibiting campaign activity within 100 feet of a polling place is valid. Even though the law is content based and concerns an essential element of free speech, it is necessary to serve a compelling interest of preventing voter intimidation and election fraud.

Abortion - "Physician Only" Requirement

Law restricting performance of abortions to licensed physicians does not impose undue burden on woman

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Buffer Zones

Laws and injunctions restricting expression within so-called "buffer zones" are often found in the context of cases dealing with demonstrations on streets and sidewalks outside abortion clinics. These laws typically set boundaries of a specified number of feet from clinic entrances within which anti-abortion protestors may not approach women entering the clinics in order to ensure unobstructed access and maintain public safety and the free flow of vehicular and pedestrian traffic. Supreme Court has for the most part found buffer-zone laws to be reasonable, content-neutral regulations of speech that further the important state interest of preserving access to healthcare facilities and maintaining public order.

Regulations Protecting Local Businesses (Commerce Clause)

Laws designed to protect local businesses against interstate competition generally will be invalidated

Freedom of Association & Belief - Electoral Process - Limits on Contributions - To Political Candidate

Laws limiting the amount of money that a person or group may contribute to a political candidate are valid since the government has a sufficiently important interest in stopping the fact (or appearance) of corruption that may result from large contributions. Moreover, such laws do not substantially restrict freedom of expression or freedom of association (as long as the contributor may spend his money directly to discuss candidates and issues)

Freedom of Association & Belief - Electoral Process - Regulations of Core Political Speech - Prohibiting Anonymous Campaign Literature

Laws prohibiting distribution of anonymous campaign literature involve core political speech and have been stricken b/c they were not narrowly tailored to a compelling state interest.

Freedom of Association & Belief - Electoral Process

Laws regulating the electoral process might impact on First Amendment rights of speech, assembly, and association. The SC uses a balancing test in determining whether a regulation of the electoral process is valid: If the restriction on First Amendment activities is severe, it will be upheld only if it is narrowly tailored to achieve a compelling interest, but if the restriction is reasonable and nondiscriminatory, it generally will be upheld on the basis of the states' important regulatory interests.

Congressional "Veto" of Executive Actions

Legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism (i.e., passage by both houses of Congress) or presentment (i.e., giving the bill to the President for his signature or veto). legislative vetoes of executive actions are invalid. Legislative veto usually arises where Congress delegates discretionary power to the President or an executive agency. In an attempt to control the delegation, Congress requires the President or agency to present any action taken under the discretionary power to certain members of Congress for approval. If they disapprove, they veto the action and that is the final decision on the action. This is unconstitutional because, to be valid, legislative action (the veto) must be approved by both houses and presented to the President for his approval. SC has also noted that the legislative veto violates the implied separation of powers requirements of the Constitution.

Legislators' Standing

Legislators may have standing to challenge constitutionality of government action if they have a sufficient "personal stake" in the dispute and suffer sufficient "concrete injury."

Criminal vs. Civil Punishment (Delegation of Legislative Power)

Legislature may delegate its authority to enact regulations, the violation of which are crimes, but prosecution for such violations must be left to the executive and judicial branches. However, agencies may enact and impose civil penalties (e.g., fines labeled as civil fines) without prosecution in court.

Treaties - Supreme Law

Like other federal law, treaties are the "supreme law of the land." Any state action or law in conflict with a U.S. treaty is invalid (regardless of whether it is a state law or a state constitutional provision).

Bar Membership and Public Employment - Loyalty Oaths - Oath Not Upheld

Loyalty oath for public employees that they promote respect for the flag and reference for law and order is void for vagueness since a refusal to salute the flag on religious grounds might be found in breach thereof.

Impeachment by the House

Majority vote in house is necessary to invoke the charges of impeachment

Freedom of Religion - Free Exercise Clause - States Can Regulate General Conduct - Criminal Laws and Other Regulations - Unemployment Compensation - Some Exemption Required

Many state unemployment compensation programs make payments only to persons who are involuntarily unemployed and who are available for work. Here, however, unlike other areas of regulation, the SC has held that the states must grant religious exemptions. Thus, if a person resigns from a job or refuses to accept a job b/c iot conflicts with her religious beliefs, the state must pay her unemployment compensation if she is otherwise entitled.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Spouse of Wealthy Person

Marriage to extremely wealthy person or divorcing such a person does not amount to voluntarily entering the public arena even though press conferences are held by the plaintiff b/c going to court is the only way she could dissolve marriage

Congress's power under section 5 of 14th Amendment

May not create new rights or expand scope of rights. May act only to prevent or remedy violations of rights recognized by courts and such laws must be proportionate and congruent to remedying constitutional violations.

Ex Post Facto - Distinguish Procedural Changes

Mere procedural changes in state law will not necessarily trigger the Ex Post Facto Clause. a modified law can be applied to a crime committed before the law's modification if the defendant had notice of the possible penalty and the modified law does not increase the burden on defendant.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Military Bases

Military bases are not public forums; thus, on-base speech and assembly may be regulated, even during open houses where the public is invited to visit. However, if the military leaves its streets open as thoroughfares, they will be treated as public forums.

Court-Martial of American Soldiers in Military Courts

Military courts have jxn over all offenses (not just service connected offenses) committed by persons who are members of the armed services, both when charged and at the time of the offense.

Court-Martial of Enemy Civilians and Soldiers

Military courts may try enemy civilians as well as enemy military personnel, at least during wartime.

Procedural Due Process - Liberty - Commitment to Mental Institution - Minor Children

Minor children have a substantial liberty interest in not being confined unnecessarily for medical treatment. Thus, they are entitled to a screening by a neutral factfinder before commitment to a mental institution. Mere parental consent to commitment is not enough.

Concurrent Federal and State Power--Supremacy Clause

Most governmental power is concurrent, belonging to both the states and federal government. Thus, it is possible for states and the federal government to pass legislation on the same subject matter. When this occurs, the Supremacy Clause provides that the federal law is supreme, and the state law is rendered void if it is preempted. State law may be preempted expressly or impliedly.

"Taking" vs. "Regulation" - Use Restrictions - Building/Development Permits--Transfer of Occupation Rights (Nollan/Dolan)

Municipalities often try to condition building or development permits on a landowner's (i) conveying title to part, or all, of the property to the government or (ii) granting the public access to the property (e.g., an easement across the property). Such conditions constitute an uncompensated taking unless (i) the government can show that the condition relates to a legitimate government interest and (ii) the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights.

Federal legislative power - Congress's authority to act

Must be express or implied Congressional power Necessary and proper clause Taxing/spending power and the commerce power

Prior Restraints - Sufficiency of Governmental Interest - National Security

National security is a sufficient harm justifying prior restraint. Thus, a newspaper could be prohibited from publishing troop movements in times of war. However, the harm must be more than theoretical. Thus, the Court refused to enjoin publication on the basis that publication might possibly have a detrimental effect on Vietnam War.

Necessary and Proper Power

Necessary and Proper Clause grants Congress power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government. NOTE: Necessary and Proper Clause is not itself a basis of power; it merely gives Congress power to execute specifically granted powers. Thus, if a bar exam question asks what is the best source of power for a particular act of Congress, the answer should not be the Necessary and Proper Clause, standing alone. LIMITATION: Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Government Workplace or Charity

Neither a government workplace (including a court building and its grounds) nor a government controlled charity drive constitutes a public forum.

Financing Abortions

Neither fed nor local gov are required to grant medical benefit payments for abortions to indigent women, even if they grant benefits to indigent women for childbirth services. Moreover, state may prohibit public funding of abortions by prohibiting the use of public facilities for abortions and prohibiting any public employee from acting within the scope of her public employment from performing or assisting in performance of abortions.

13th Amendment

Neither slavery nor involuntary servitude shall exist in U.S. The amendment contains no language limiting its effect to governmental action (e.g., "no state shal..."); thus, it applies even to private action

Ex Post Facto Laws

Neither the state nor the fed gov may pass an ex post facto law. Art. 1, section 9 is the federal prohibition. Art. 1, section 10 is the state prohibition. Ex post facto law is legislation that retroactively alters the criminal law (not civil regulation, such as denial or professional licenses) in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--True Privacy Actions--Publishing True Fact of Public Record

Newspaper or broadcaster cannot be sued for publishing true fact once it is lawfully obtained from the public record or otherwise released to public.

Delegation of powers

No limits on Congress's ability to delegate legislative power Legislative vetos and line-item vetos are unconstitutional. For Congress to act, there must always be bicameralism (passage by both House and Senate) and presentment (giving bill to President to sign or veto). President must sign or veto a bill in its entirety. Congress may not delegate power to itself or its officers

Type of Process - Disability Benefits

No prior evidentiary hearing is required for termination of disability benefits as long as there is prior notice to the recipient, an opportunity to respond in writing, and a subsequent evidentiary hearing (with retroactive payment if the recipient prevails). RATIONALE: Disability benefits (unlike welfare benefits) are not based on financial need and hence are not vital.

Nondiscriminatory, Indirect Taxes

Nondiscriminatory, indirect taxes on federal government or its property are permissible if they do not unreasonably burden federal government.

Insignificant State Involvement - Heavily Regulated Businesses and/or Granting of a Monopoly to a Utility - Nursing Home

Nursing home operated by private corporation did not exercise state action when it discharged Medicaid patients, even though its operation was extensively regulated by government

Bar Membership and Public Employment - Loyalty Oaths - Vagueness - Oath Upheld - To Oppose Overthrow of Government

Oath required of all state employees to oppose the overthrow of the government by force, violence, or by an illegal or unconstitutional method has been upheld. Court read this oath as akin to those requiring the taker simply to "support" the Constitution, "to commit themselves to live by the constitutional processes of our system." Moreover, the oath provided fair notice because its violation could be punished only by prosecution for perjury, which required proof of knowing falsity.

Bar Membership and Public Employment - Loyalty Oaths - Vagueness - Oath Upheld - To Support Constitution

Oath that required public employees and bar applicants to support the U.S. Constitution and the state constitution has been upheld

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity

Obscenity is not protected speech. Court has defined it as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying community standards: (i) Appeals to the prurient interest in sex; (ii) Portrays sex in a patently offensive way; and (iii) Does not have serious literary, artistic, political, or scientific value--using a national, reasonable person standard, rather than the contemporary community standard.

Injury (standing)

Plaintiff must allege and prove that he has been injured or imminently will be injured. 1. Plaintiffs only may assert injuries that they have personally suffered. 2. Plaintiffs seeking injunctive or declaratory relief must show likelihood of harm.

Post-Viability Rule

Once fetus is viable, state's interest in fetus's life can override woman's right to choose abortion, but it does not override the state's interest in the woman's health. Thus, after viability, the state can prohibit woman from obtaining an abortion unless necessary to protect mother's life or health. However, viability is itself a medical question, and a state cannot unduly interfere with the attending physician's judgment as to the reasonable likelihood that the fetus can survive outside the womb.

Effect of a "Break" in Transit (IC) (Course of Interstate Commerce)

Once started, a shipment remains in the course of interstate commerce unless actually diverted. Breaks in the continuity of transit will not destroy the interstate character of the shipment, unless the break was intended or suspend (rather than temporarily interrupt) the shipment.

Procedural Due Process - Property - Welfare Benefits

One has a property interest in welfare benefits if she has previously been determined to meet the statutory criteria.

Suits by One State Against Another

One state may sue another state without eh latter/s consent. SC has exclusive original jxn

What Property is Immune from Local Property Taxation?

Only property "in the course of" interstate commerce is immune from local property taxation.

Bill of Rights--What Rights Apply to States Through 14th Amendment?

Only those safeguards that are "essential to liberty," including: All 1st Amendment guarantees; Second Amendment right to bear arms; Fourth Amendment (unreasonable search and seizure); Elements of Fifth Amendment (privilege against self-incrimination; compensation for taking of private property for public use); Sixth Amendment (speedy and public trial by impartial jury, notice and right of confrontation, compulsory process, and right to legal counsel in all serious criminal proceedings); and Eighth Amendment (cruel and unusual punishment, excessive bail, and excessive find provisions are assumed to be incorporated but there is no precise ruling)

U.S. Supreme Court Original Jurisdiction

Original and exclusive jurisdiction for suits between state governments.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public Forums and Nonpublic Forums

Other than streets, sidewalks, parks, and designated public forums, most public property is considered to be a limited public forum (e.g., government property opened up for a specific speech activity, such as a school gym opened on a particular night to host a debate on a particular community issue) or a nonpublic forum. The government can regulate speech in such forums to reserve them for their intended use.

Fundamental Rights - Privacy - Rights of Parents

Parents have fundamental right to make decisions concerning the care, custody, and control of their children.

Freedom of Speech and Assembly - Mandatory Financial Support - Private Speech

People cannot be compelled to subsidize private messages with which they disagree

Rights of Children of Citizens

Person born in another country to U.S. citizen parents does not have a constitutional right to become a U.S. Citizen. Congress can grant citizenship to children born abroad conditioned on their return to live in the U.S. within a specified period of time or for a specified number of years. Such a child who fails to return to the U.S. loses his grant of citizenship b/c he has failed to meet the statutory condition precedent to his final grant of citizenship.

Tenth Amendment - Standing

Person can have standing to allege that fed action violates the Tenth Amendment by interfering with the powers reserved to the states, assuming the person can show injury in fact and redressability.

Freedom of Speech and Assembly - Void for Vagueness - Burden of Proof

Person challenging the validity of the regulation has burden of showing substantial overbreadth

Freedom of Religion - Free Exercise Clause - States Can Regulate General Conduct - Criminal Laws and Other Regulations - Unemployment Compensation - Need Not Belong to Formal Religious Organization

Person does not have to be member of formal religious organization to receive exemption from unemployment compensation requirement. All that is required is that the person sincerely hold religious beliefs that prevent him from working on a certain day or on military products.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Involvement in Particular Controversy

Person may "voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved" and thereby become a public figure for a limited range of issues.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--General Fame or Notoriety

Person may be a public figure for all purposes and contexts if he achieves "general fame or notoriety in the community and pervasive involvement in the affairs of society," although "a citizen's participation in community and professional affairs" does not render him a public figure for all purposes.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Person Engaging in Criminal Conduct

Person who engages in criminal conduct does not automatically become public figure even when the defamatory statements relate solely to his conviction

No third party standing

Plaintiff cannot assert claims of third parties not before the court. 1. Exception: Third party standing allowed if there is close relationship between plaintiff and injured party 2. Exception: Third party standing allowed if injured third party is unlikely to be able to assert his own rights. 3. Exception: organization may sue for its members if (a) there is injury in fact to members; (b) interests are germane to organization's purpose; and (c) neither claim nor relief requires participation of individual members

Causation/redressability (standing)

Plaintiff must allege and prove that defendant caused injury so that favorable court decision is likely to remedy injury.

No generalized grievances (standing)

Plaintiff must not sue solely as citizen or taxpayer interested in having government follow law. Exception: taxpayers have standing to challenge government expenditures pursuant to federal (or state and local statutes as violating Establishment Clause.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Private Individual Suing on Matter of Public Concern--Proof of Negligence Required

Plaintiff must show that defendant was negligent in failing to ascertain the truth of the statement. If plaintiff establishes negligence but not actual malice, he also has to provide competent evidence of "actual" damages. Actual damages may be awarded not only for economic losses but also for injury to plaintiff's reputation in the community and for personal humiliation and distress.

Bar Membership and Public Employment - Loyalty Oaths - Overbreadth - Advocacy of Doctrine

Political party may not be denied a place on the ballot for refusing to take a loyalty oath that it does not advocate violent overthrow of the government as an abstract doctrine. The First Amendment forbids "statutes regulating advocacy that are not limited to advocacy of action."

Establishment Clause - Religious Activities in Public Schools - Posting 10 Commandments in Classroom

Posting the 10 Commandments on the walls of public school classrooms plainly serves a religious purpose and is invalid, despite the legislature's statement that it was for a secular purpose.

Investigatory Power

Power to investigate to secure information as a basis for potential legislation or other official action (such as impeachment or trying impeachments) is an implied power. It is a very broad power in that an investigation need not be directed toward enactment of particular legislation but some limitations on its use do exist: Authorized Investigation: The investigatory inquiry must be expressly or impliedly authorized by the congressional house concerned, i.e., by statute or resolution creating or directing the investigating committee or subcommittee. Witnesses' Rights a) Fifth Amendment: The privilege against compulsory self-incrimination is available to witnesses, whether formal or informal, unless a statutory immunity co-extensive with the constitutional immunity is granted. b) Relevance: Written or oral information elicited by the investigative body must be pertienent to the subject of the inquiry. c) Procedural Due Process: Witnesses are generally entitled to procedural due process, such as presence of counsel and right of cross-examination; but it is not yet clear whether such rights are constitutionally required or whether some of them are required merely by house rule or statute. Enforcement of investigatory powers: Congress can hold a subpoenaed witness in contempt for refusing to appear or answer before Congress.

Regulation of Foreign Commerce

Power to regulate foreign commerce lies exclusively with Congress. "Foreign" commerce has been held to include traffic on the high seas, even though both terminal ports are within the U.S. SC has recognized a few exceptions: states are free to regulate local aspects of port pilotage and navigation of ships in foreign commerce; Court has permitted state regulation of excursion boat traffic b/n Detroit and Canadian island since no Canadians or Canadian products or services were involved.

Establishment Clause - Religious Activities in Public Schools - Prayer and Bible Reading

Prayer and Bible reading in public school are invalid as establishments of religion. It does not matter whether participation is voluntary or involuntary, and neither does it matter that the prayer period is designated as a period of silent prayer or meditation. This rule extends to prohibit public school officials from having clerics give invocation and benediction prayers at graduation ceremonies. Similarly, a school policy authorizing students to elect whether to have a student invocation before varsity games, to select a student to deliver it, and to decide its content violates the Establishment Clause. Unlike student speeches at an open public forum, this policy's purpose is to encourage religious messages.

Veto Power - Time Limit

President has 10 days (excepting Sundays) to exercise his veto power. If he fails to act w/in that time: (i) The bill becomes law of Congress is still in session; or (ii) The bill is automatically vetoed if Congress is not in session (a "pocket veto"). NOTE: Brief recesses during an annual session create no pocket veto opportunity

Executive Immunity for President

President has absolute immunity from civil damages based on any action that the President took w/in his official responsibilities, even if the action was arguably only within the outer perimeter of his presidential responsibility. However, President has no immunity from private suits in federal courts based on conduct that allegedly occurred before taking office. RATIONALE: The immunity is intended only to enable President to perform his desognated functions without fear of personal liability.

Executive privilege

President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests

No Power to Impound and the Take Care Clause

President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent.

Pardon

President has power to pardon those accused or convicted of federal crimes.

Pardons

President is empowered by Art. II, Section 2, "to grant reprieves and pardons for offenses against the U.S., except in cases of impeachment." This power has been held to apply before, during, or after trial, and to extend to the offense of criminal contempt, but not to civil contempt, inasmuch as the latter involves the rights of third parties. The pardon power cannot be limited by Congress, and includes the power to commute a sentence on any conditions the President chooses, as long as they are not independently unconstitutional.

Power as Chief Executive

President's power over internal affairs as chief executive is unclear. President has some power to direct subordinate executive officers, and there is a long history of presidents issuing executive orders. Best guide is Youngstown Sheet & Tube v. Sawyer: (i) Where President acts w/ the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid; (ii) Where President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and (iii) Where President acts against the express will of Congress, he has little authority and his action likely is invalid.

Executive Agreements

President's power to enter into agreements with the heads of foreign countries is not expressly provided for in the Constitution; nevertheless, the power has become institutionalized. Executive agreements can probably be on any subject as long as they do not violate the Constitution. They are very similar to treaties, except that they do not require senate consent.

Impeachment & removal

President, VP, federal judges, and officers of U.S. can be impeached and removed for treason, bribery, or for high crimes and misdemeanors. Impeachment does not remove a person from office Impeachment by House of Representatives requires majority vote; conviction in Senate requires 2/3 vote

Persons Subject to Impeach

President, Vice President, and all civil officers of U.S.

Power to Settle Claims of U.S. Citizens

President, with the implicit approval of Congress, has power to settle claims of U.S. citizens against foreign governments through an executive agreement.

Executive Immunity for Presidential Aides

Presidential aides share in executive immunity only if they are exercising discretionary authority for the President in "sensitive" areas of national concern, such as foreign affairs. Other aides are entitled only to a qualified immunity.

Executive Privilege - National Security Secrets

Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such materials as evidence in a criminal case to which they are relevant and otherwise admissible. This determination must be made by the trial judge after hearing the evidence.

Extent of Executive Privilege

Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such materials as evidence in a criminal case to which they are relevant and otherwise admissible. This determination must be made by the trial judge after hearing the evidence.

Nonpolitical Controversy

Presidential papers and communications are generally considered to be privileged and protected against disclosure in the exercise of the executive power. But where these documents are necessary to the continuation of criminal proceedings, the question of production is justiciable and not political.

Freedom of the Press - Business Regulations or Taxes

Press and broadcasting companies can be subject to general business regulations (e.g., antitrust laws) or taxes (e.g., federal or state income taxes). Thus, a tax or regulation applicable to both press and non-press businesses will be upheld, even if it has a special impact on a portion of the press or broadcast media, as long as it is not an attempt to interfere with First Amendment activities. However, no tax or regulation impacting on the press or subpart of the press may be based on the content of the publication absent a compelling justification.

Freedom of the Press - Access to Trials - Pretrial Proceedings

Pretrial proceedings are presumptively subject to a First Amendment right of access for the press and public. Thus, a law requiring all preliminary hearings be closed to the press and public violates the First Amendment. If the prosecution and defense counsel seek to have a judge close pretrial proceedings, the judge would have to make specific findings on the record demonstrating (i) that the closure order was essential to preserve "higher" or "overriding" values, and (ii) that the closure order was narrowly tailored to serve the higher or overriding value. If the prosecution seeks to have a pretrial hearing or trial closed to the public and the defendant objects to the closure, there will be a Sixth Amendment violation if the judge excludes the public and press from the hearing or trial without a clear finding that a closure order was necessary to protect an overriding interest.

Type of Process - Creditors' Remedies

Pretrial remedies, such as attachment of property or garnishment of wages, that are merely designed to provide a plaintiff with some guarantee that there will be assets to satisfy a judgment against the defendant if the plaintiff eventually wins the case should not be issued by a court without notice to the defendant and a hearing prior to the issuance of the order. A court may issue a temporary order of this type if: (i) there are exigent circumstances that justify the order; and (ii) the defendant is given a hearing after the order issued but prior to trial. However, laws authorizing creditors to garnish assets, or a conditional seller to seize or sequester property, will be upheld without prior notice to the debtor if: (a) The creditor posts a security bond; (b) The application is made to a judge, is not conclusory, and documents narrowly confined facts susceptible of summary disposition; and (c) Provision is made for an early hearing at which the creditor must show probable cause.

Prior Restraints

Prior restraint is a court order or administrative system that keeps speech from occurring (e.g., licensing system, prohibition against using mails, injunction). Prior restraints are not favored; the Court would rather allow speech and then punish it if it was unprotected. However, Court will uphold prior restraints if some special harm would otherwise result. As with other restrictions on speech, a prior restraint must be narrowly tailored to achieve some compelling or, at least, significant governmental interest. Court has also required that certain procedural safeguards be included in any system of prior restraint.

Equal Protection - Private Affirmative Action

Private employers are not restricted by the EPC since the Clause applies only to the gov and private employers lack state action. Nevertheless, Congress has adopted statutes regulating private discrimination by employers pursuant to its power under the enabling provisions of the 13th and 14th Amendments and the Commerce Clause. Thus, if an exam question asks whether private employer discrimination is valid, the answer generally cannot be based on equal protection.

Unprotected Speech--Regulation or Punishment Because of Content--Statutes Must Not Be Vague--Private Possession of Obscenity

Private possession of obscenity at home cannot be made a crime b/c of the constitutional right of personal privacy. However, the protection does not extend beyond the home. Thus, importation, distribution, and exhibition of obscene materials can be prohibited. EXCEPTION: Child porn--state may make private possession of child porn a crime, even private possession for personal viewing in a residence.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Actual Malice in False Quotation Cases

Proof that defamation plaintiff was inaccurately quoted does not, by itself, prove actual malice, even if the quotation was intentionally altered by defendant. If the published "quotation" is substantially accurate, plaintiff may not collect damages. To show actual malice, public figure plaintiff must prove that defendant's alteration of the quotation materially changed the meaning of the actual statements made by plaintiff.

Privilege, License, Franchise, or Occupation Taxes

Privilege, license, franchise, and occupation taxes are cumulatively known as "doing business" taxes. States generally can impose such taxes--on companies engaged exclusively in interstate commerce, as well as on interstate companies engaged in local commerce--for the privilege of doing business within the state. Such taxes may be measured by a flat amount or by a proportional rate based on revenue derived from the taxing state. In either case, the tax must meet the basic requirements--the activity taxed must have a substantial nexus to the taxing state; and the tax must be fairly apportioned, must not discriminate against interstate commerce, and must fairly relate to services provided by the state. Taxpayer has burden of showing that state's apportionment formula is unfair. However, state tax that discriminates against interstate commerce will be held invalid regardless of whether the taxpayer can show that an actual, unfair multiple burden is imposed on his business.

Type of Process - Civil Forfeiture

Procedural due process limits government's ability to seize property allegedly subject to forfeiture (which most often occurs when government claims that the property was connected to, or was the product of, criminal activity). Absent exceptional circumstances, the government must provide the owner of real property notice and an opportunity for some type of hearing prior to seizing real property. However, the government might be able to seize personal property prior to providing the owner a hearing, since personal property can be hidden or destroyed.

Establishment Clause - Religious Activities in Public Schools - Released-Time Programs - Nonpublic Building Used

Programs in which participating children go to religious classes conducted at religious centers away from the public school do not violate the Establishment Clause.q

Establishment Clause - Religious Activities in Public Schools - Relesed-Time Programs - In Public School Building

Programs in which regular classes end an hour early one day a week and religious instruction is given in public school classrooms to students who request it are invalid.

Establishment Clause - Financial Benefits to Church-Related Institutions - Aid to R$eligiously Affiliated Grade Schools or High Schools

Programs of aid to these institutions are subject to the same three-party test as are all other laws under the Establishment Clause. Most of the time, such programs will have a secular purpose--to aid in education. However, if significant aid is given to the religious school, the program may be deemed to have a primary effect that advances religion. If the gov program has detailed administrative or legislative regulations that are designed to ensure that the aid does not result in a primary effect of advancing religion, the law may be stricken as giving rise to an excessive entanglement between government and religion.

First Amendment - Overview

Prohibits Congress from establishing a religion or interfering with the exercise of religion, abridging the freedom of speech or the press, or interfering with the right of the people to assemble. These prohibitions have been made applicable to the states through the 14th Amendment. The freedoms, however, are not absolute, and exam questions often focus on their boundaries.

15th Amendment - General

Prohibits states and fed gov from denying any citizen the right to vote on account of race or color. Contains an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination.

Civil Rights Act and Commerce Clause

Provisions of the Civil Rights Act of 1964 barring discrimination in places of public accommodation are proper and valid exercises of commerce power.

Contract Clause - Basic Impairment Rules - Public Contracts - Stricter Scrutiny

Public contracts (i.e., those in which the state or political subdivision is a party) are tested by the three-part test; however, they will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state. When applying the three party test, note the following: (i) There is no substantial impairment if the state has reserved the power to revoke, alter, or amend either in the contract itself or in a statute or law the terms of which should be considered to be incorporated into the contract. (ii) In determining whether the law serves as a legitimate public interest, note that the state cannot be obligated by contract to refrain from exercising its police powers necessary to protect the health and safety of its residents; and (iii) To be narrowly tailored, the law should not constitute an unnecessarily broad repudiation of contract obligations.

Significant State Involvement - Official Acts - Public Defenders

Public defender does not act for the state when he represents an indigent client. Therefore, negligence or malpractice by public defender is not a denial of due process b/c the public defender's actions are not state actions.

Bar Membership and Public Employment - Loyalty Oaths - Overbreadth - Knowledge of Organization's Aim

Public employment cannot be denied to persons who are simply members of the Communist Party b/c only knowing membership with specific intent to further unlawful aims is unprotected by First Amendment

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Public Official or Public Figure--Actual Malice Requirement

Public official may not recover for defamatory words relating to his official conduct or matter of public concern without clear and convincing evidence that the statement was made with actual malice. This rule has been extended to public figure plaintiffs.

Suits by state against U.S.

Public policy forbids a state from suing the U.S. without its consent. Congress can pass legislation that permits the U.S. to be sued by a state in given situations

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Public Forums and Designated Public Forums

Public property that has historically been open to speech-related activities (e.g., streets, sidewalks, parks) is called a public forum. Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or temporary basis, by practice of policy (e.g., school rooms) is called a designated public forum. Government may regulate speech in public forums and designated public forums with reasonable time,place, and manner regulations

Ripeness

Question of whether federal court may grant pre-enforcement review of statute or regulation.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - Racial Gerrymandering

Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can pass muster under strict scrutiny. Moreover, a district's bizarre shape can be used to show that race was the predominant factor in drawing the district's boundaries, although a bizarre shape is not necessary to such a finding. Note that the person challenging the reapportionment has the burden of proving the race-based motive.

Equal Protection - Discriminatory Legislative Apportionment

Race can be considered in drawing up new voting districts but it cannot be the predominant factor. If a plaintiff can show that a redistricting plan was drawn up predominantly on the basis of racial considerations (as opposed to the more traditional factors, such as compactness, contiguity, and community interest), the plan will violate the EPC unless the gov can show that the plan is narrowly tailored to serve compelling state interest.

Freedom of the Press - Broadcasting Regulations

Radio and TV broadcasting may be regulated than the press. Rationale: Due to the limited number of frequencies available, broadcasters have a special privilege--and, consequently, a special responsibility to give suitable time to matters of public interest and to present a suitable range of programs. The paramount right is the right of viewers and listeners to receive information of public concern, rather than the right of broadcasters to broadcast what they please.

Equal Protection - Standard of Review - Rational Basis (Minimal Scrutiny)

Rational basis standard is used whenever the other two standards do not apply (most legislation). Under the rational basis standard, a law will be upheld if it is rationally related to a legitimate interest. It is difficult to fail this test, so most governmental action examined under this standard is upheld unless it is arbitrary or irrational.

Equal Protection - School Integration

Recall that only intentional discrimination will be found to create discriminatory classifications calling for strict scrutiny; thus, only intentional segregation in schools will be invalidated under equal protection.

Recess Appointments

Recess Appointments Clause of the Constitution gives the President power to make appointments for vacancy without Senate approval during any Senate recess of "sufficient duration." Under the Clause, the Senate is in recess only when it states it is in recess. If the Senate does not declare a recess and it holds pro forma sessions, the Senate is not in recess and the President has no power to make appointments without Senate approval.

Prior Restraints - Sufficiency of Governmental Interest - Contractual Agreements

SC has held that prior restraint is permissible where the parties have contractually agreed to the restraint.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Content Neutral

Regulation cannot be based on content of the speech--i.g., it must be subject matter neutral and viewpoint neutral--absent substantial justification

Freedom of Speech and Assembly - Scope of Speech - Prison Speech

Regulation concerning activities of prison inmates, including any First Amendment speech activities is governed by a different standard in order to facilitate prison order. The regulation will be upheld if reasonably related to legitimate penological interests. Thus, a restriction on incoming mail will be upheld if it is rational; a restriction on outgoing mail must be narrowly tailored b/c there is less of a penological interest involved.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Important Interest

Regulation must further an important government interest. Such interests include: traffic safety, orderly crowd movement, personal privacy, noise control, litter control, aesthetics, etc.

Freedom of Association & Belief - Electoral Process - Regulations of Core Political Speech

Regulation of core political speech must be distinguished from regulation of the process surrounding elections. Regulation of core political speech will be upheld only if it passes muster under strict scrutiny.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Reasonableness

Regulation of speech and assembly in nonpublic forums need only be rationally related to a legitimate governmental objective

Bar Membership and Public Employment - Practice of Law

Regulation of the legal profession may conflict with the freedom of association rights of certain groups b/c it may impair their ability to band together to advise each other and utilize counsel in their common interest. To overcome a group's right to exercise its First Amendment rights, the state must show a substantial interest, such as evidence of objectionable practices occurring or an actual or clearly threatened conflict of interest b/n lawyer and client.

Substantive Due Process - Applicable Standards - Mere Rationality - Zoning

Regulation of the ownership or use of property has been liberally tolerated by the Court.

Freedom of Speech and Assembly - Content vs Conduct

Regulation seeking to forbid communication of specific ideas (i.e., a content regulation) is less likely to be upheld than a regulation of the conduct incidental to speech.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Viewpoint Neutral

Regulations on speech in nonpublic forums need not be content neutral; i.e., the government may allow speech regarding some subjects but not others. However, such regulations must be viewpoint neutral; i.e., if the government allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one view.

Economic Regulation During War

Regulatory power of Congress, especially in economic matters and mobilization of troops, in support of war effort is pervasive (although theoretically limited by the Bill of Rights); thus, the Court has sustained national price and rent control, as well as conscription and regulation of civilian/military production and services.

Fundamental Rights - Right to Vote - Restrictions - Residency Requirements

Relatively short residency requirements restricting right to vote (e.g., 30 days) are valid b/c there is a compelling interest in ensuring that only bona fide residents vote. However, longer residency requirements will probably be held invalid (e.g., one year) because they discriminate against newer residents without a compelling reason, and thus violate the Equal Protection Clause. Such residency requirements might also violate the right to travel interests. Note also that Congress may override residency requirements in presidential elections.

Equal Protection - Remedial Justifications - Local Private Discrimination

Remedying past private discrimination within the governmental agency's jxn is a compelling interest, but there is no compelling interest in remedying the general effects of societal discrimination. Thus, for a city to give a preference to minority race applicants for city construction contracts, it must identify the past unconstitutional or illegal discrimination against minority-owned construction businesses that it is now attempting to correct.

"Taking" vs. "Regulation" - Actual Appropriation or Physical Invasion

Taking will almost always be found if there is an actual appropriation or destruction of a person's property or a permanent physical invasion by government or by authorization of law.

Speech or Debate Clause - Defamatory Statements

Republication in a press release or newsletter of a defamatory statement originally made in Congress is not immune.

Taxing Power - Uniformity

Requirement of uniformity in the levy of indirect taxes (generally, this means any kind of privilege tax, including duties and excises) has been interpreted by the SC to mean geographical uniformity only--i.e., identical taxation of the taxed Article in every state where it is found.

Abortion - Waiting Period

Requiring 24-hour waiting period b/n time the woman gives her informed consent and time of abortion does not amount to undue burden

Freedom of Speech and Assembly - Scope of Speech - Military Recruitment on School Property

Requiring schools of higher education to allow military recruiters to recruit on campus or risk losing federal funding does not implicate free speech rights. This is so even if the schools disagree with the military's ban against homosexuals. School recruitment receptions are not inherently expressive from the schools' standpoint; they are merely a way to help students obtain jobs. Schools are not being asked to say or refrain from saying anything, and neither are they being asked to associate with the military in any significant way. Moreover, there is little chance that a person would attribute the military's position to the schools. Thus, there is no First Amendment violation.

Fundamental Rights - Right to Vote - Candidates and Campaigns - Candidates and Campaigns - Restrictions on Ability of Person to Be Candidates

Restrictions on ability of persons to be candidates must be examined to see if they violate either the First Amendment right of political association or the 14th Amendment EPC. Such regulations are judged on a sliding scale of scrutiny. NOTE: State may require candidates to show reasonable support (signatures or votes) to qualify to have their names placed on the ballot.

Unprotected Speech--Regulation or Punishment Because of Content

Restrictions on the content of speech must be necessary to achieve a compelling government interest. Very few restrictions on content are tolerated. Court allows them only to prevent grave injury.

Fundamental Rights - Right to Vote

Right of all U.S. citizens over 18 years of age to vote is mentioned in 14th, 15th, 19th, 24th, and 26th Amendments. It extends to all national and state government elections, including primaries. Right is fundamental; thus, restrictions on voting, other than on the basis of age, residency, or citizenship, are invalid unless they can pass strict scrutiny.

Fundamental Rights - Privacy - Marriage

Right of male and female to enter into a marriage relationship is a fundamental right. Although not all cases examining marriage regulations clearly use the compelling interest standard, a law prohibiting a class of persons from marrying is likely to be invalidated unless the government can demonstrate that the law is narrowly tailored to promote a compelling or overriding or, at least, important interest. NOTE: Court has indicated that there is a "marital zone of privacy" so it will likely grant broader protection to private sexual relations between married persons than it does concerning unmarried persons.

Fundamental Rights - Privacy - Freedom from Collection and Distribution of Personal Data

Right of privacy does not prevent state from accumulating and computerizing the names and addresses of patients for whom dangerous drugs are prescribed. And state can republish the recording of an official act, such as an arrest.

Fundamental Rights - Privacy - Obscene Reading Material

Right of privacy encompasses the freedom to read obscene material in your home, except for child porn. It does not, however, include the right to sell, purchase, receive, or transport obscene material.

Fundamental Rights - Privacy - Abortion

Right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state. However, because the Court has held that the states have a compelling interest in protecting the health of both the women and the fetus that may become a child, it is difficult to apply the normal "strict scrutiny" analysis to abortion regulations. Moreover, the SC has actively been changing the rules regarding abortions and the Justices have not agreed on any applicable standard. In the Court's latest announcement, the pluratlity aopinion adopted the pre-viability rule and the post-viability rule

Fundamental Rights - Privacy - Keeping Extended Family Together

Right of privacy includes the right of family members--even extended ones--to live together. Thus, zoning ordinance cannot prohibit extended families from living in a single household since there is no compelling interest to justify such rule.

Substantive Due Process - Fundamental Rights

Right to travel; Privacy; Voting; and All 1st Amendment rights

Fundamental Rights - Right to Vote - Residency Requirements - Members of Armed Forces

Right to vote cannot automatically be denied to members of armed forces stationed at a particular locality. They must be given an opportunity to prove their bona fide residency.

Difference b/n ripeness and mootness

Ripeness and mootness are related concepts in that court will not hear case unless there is live controversy. Ripeness bars consideration of claims before they have developed; mootness bars their consideration after they have been resolved.

Freedom of Association & Belief - Electoral Process - Regulations of Core Political Speech - Prohibiting Judge Candidates from Announcing Their Views

Rule prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. This is both a content-based restriction and a restriction on core political speech. In either case, it can be justified only if it is necessary to a compelling state interest.

Favoring Government Performing Traditional Government Functions

SC applies a more lenient standard when a law favors government action involving the performance of a traditional government function (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.

Commerce Clause

SC has allowed Congress to use the Commerce Clause to limit the power of individuals over other individuals--by adopting legislation barring private racial discrimination in activities "connected with" interstate commerce. Under the affectation doctrine, almost any activity can be said to be connected with interstate commerce.

Fundamental Rights - Right to Refuse Medical Treatment

SC has assumed (without deciding) that a mentally competent adult has the right to refuse lifesaving medical treatment (including lifesaving nutrition)

Freedom of Speech and Assembly - Unprotected Categories of Speech

SC has determined that certain categories of speech (e.g., obscenity, defamation, and "fighting words") generally are proscribable despite the 1st Amendment. Even in these cases, however, the Court is less likely to uphold a prior restraint than a punishment for speech that has already occurred.

Miscellaneous Treaty Limitations

SC has expressed in dictum the view that a treaty could not upset the basic structure of U.S. federalism or wield a power barred to the national government by the Constitution, or cede any part of a state to a foreign nation without the state's consent. The Court has never held a treaty unconstitutional, but it is conceivable that the treaty power extends only to subjects plausibly bearing on our relations with other countries.

Exclusive Public Functions

SC has found taht certain activities are so traditionally the exclusive prerogative of the state that they constitute state action even when undertaken by a private individual or organization. To date, only running a town and running an election for public office have been found to be such exclusive public functions.

Equal Protection - Alienage Classifications - Education Rights of Alien Children

SC has found that undocumented aliens are "persons" within the protection of the 14th Amendment and that it would be fundamentally unfair to punish children for the crimes of their parents. Moreover, the Court found that refusing to educate children of undocumented aliens would hinder their lives in a way that would work a punishment on them. Thus, the Court held that it is not rational for a state to deny children of undocumented aliens a free public education unless the state can show that the denial furthers a substantial state interest. Moreover, the Court held that the cost saved in not educating such children is not a sufficient interest.

Equal Protection - Facial Discrimination Absent Racial Language

SC has held that a law used as a racial classification "on its face" even though the language of the law did not include racial language. In these cases, the SC found that thee law could not be explained except in racial terms.

Equal Protection - Remedial Justifications - Diversity in Post-Secondary Education

SC has held that courts should defer to a public university's judgments that diversity is itself a compelling interest in post-secondary education. Thus, the Court held that race and ethnicity could be used as a factor (although not a predominant factor) in determining whether a particular student should be admitted. However, while the Court is willing to grant a public university deference as to the importance of diversity in a student body, it has held that courts should not give universities deference on the issue of whether a particular scheme for assuring diversity is narrowly tailored to that purpose. Strict scrutiny applies, so to pass constitutional muster, a university must show that no workable race-neutral alternatives would assure the diversity sought

Prior Restraints - Procedural Safeguards

SC has held that no system of prior restraint will be upheld unless it provides the persons whose speech is being restrained certain procedural safeguards. The safeguards arose in the context of movie censorship for obscenity, but he court has held that similar safeguards must be provided in all prior restraint cases: (i) Standards must be "narrowly drawn, reasonable, and definite," so as to include only prohibitable speech (e.g., improper to permanently enjoin witness from disclosing grand jury testimony; government interest can be protected by nonpermanent injunction) (ii) If the restraining body wishes to restrain dissemination of an item, it must promptly seek an injunction; and (iii) There must be a prompt and final judicial determination of the validity of the restraint. A number of cases provide that the government bears the burden of proving that the speech involved is unprotected.

Substantive Due Process - Applicable Standards - Mere Rationality - Punitive Damages

SC has held that punitive damages do not necessarily violate due process. However, "grossly excessive" damages--those that are unreasonably high to vindicate the state's interest in punishment--are invalid.

Freedom of Religion - Free Exercise Clause - States Can Regulate General Conduct - Criminal Laws and Other Regulations - Ministerial Exemption

SC has held that religious organizations must be granted an exemption from suits alleging employment discrimination by ministers against their religious organizations. Gov may not interfere with a decision of a religious group to fire one of its ministers. Imposing an unwanted minister would infringe on the Free Exercise Clause, which protects a religious grou's right to shape its own faith through appointments. And allowing the gov to determine who will minister within a faith also violates the Establishment Clause by interfering with ecclesiastical decisions. Moreover, this ministerial exception is not limited to the head of a religious congregation; it can extend to others in positions considered by the congregation to be ministerial.

School Sponsorship of Extracurricular Clubs

SC has held that the compelling interest test does not apply to infringement cases involving public school sponsorship of extracurricular clubs; instead, the test used in limited-public-forum-speech cases applies--sponsorship of associations can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest.

Prior Restraints - Sufficiency of Governmental Interest - Military Circumstances

SC has held that the interests of maintaining discipline among troops and efficiency of operations on military base justify requirement that persons on military base obtain the commander's permission before circulating petitions.

Substantive Due Process - Applicable Standards - Mere Rationality - Cannot Prohibit Traditionally Related Families from Living Together

SC has held that zoning regulations that prohibit members of traditional families from living together (i.e., zoning excluding cousins or grandchildren) violate due process.

Prior Restraints - Sufficiency of Governmental Interest

SC has not adopted a brightline standard for determining when prior restraint is justified, but it has said that the government's burden is heavy. For exam purposes, ask whether there is some special societal harm that justifies the restraint.

Freedom of Religion - Free Exercise Clause - No Punishment of Beliefs - What Constitutes Religious Belief

SC has not defined what constitutes a religious belief. However, it has made clear that religious belief does not require recognition of a supreme being and need not arise from a traditional, or even organized, religion. One possible definition is that the belief must occupy a place in the believer's life parallel to that occupied by orthodox religious beliefs.

Equal Protection - Alienage Classifications - Punitive Laws Against "Illegal" Alien Adults

SC has not held that undocumented aliens are a suspect classification. Thus, a state law that denies benefits to (or imposes burdens on) persons who are in the U.S. without the permission of the fed gov might be upheld under the rational basis test as long as the law was not totally arbitrary

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Private Individual Suing on Matter of Public Concern--Private Individual Suing on Matter Not of Public Concern

SC has not imposed constitutional restrictions on defamation actions brought by private individuals that do not involve a matter of public concern. Hence, presumed and punitive damages can be recovered even if actual malice is not established.

Fundamental Rights - Right to Travel - International Travel

SC has not yet declared that the right to international travel is fundamental, although the right appears to be protected from arbitrary federal interference by the DPC of the 5th Amendment. The Court has held that this right is not violated when the federal gov refuses to pay Social Security benefits to persons who leave the country. Test is "mere rationality, not strict scrutiny." Congress may give executive branch power to revoke the passport of a person whose conduct in another country presents a danger to U.S. foreign policy. Treasury Department, with congressional authorization, could restrict travel to and from Cuba without violating 5th Amendment.

Equal Protection - Education

SC has not yet held education to be a fundamental right. Court has not found that children are denied equal protection when the government provides greater educational opportunities for children who can afford to pay for access to the best state-operated schools. In fact, the Court has upheld the use of a property tax to fund local schools where the tax system resulted in children in districts with a high tax base getting a significantly better education than children in tax districts that could not afford significant taxes for education. Court has also upheld statute authorizing some school districts in the state to charge user fees for bus transportation to the local public schools.

Freedom of Religion - Free Exercise Clause - States Can Regulate General Conduct - Right of Amish not to Educate Children

SC has required an exemption for the Amish from a neutral law that required school attendance until age 16 b/c a fundamental tenet of Amish religious forbids secondary education. Court found that the Amish are productive and law abiding and ruled that the right to educate one's children and the Free Exercise Clause outweighed the state's interest.

Access to Courts - Indigent Plaintiffs - Fundamental Rights

SC has required waiver of government fees when imposition of a fee would deny fundamental right to the indigent.

Freedom of Religion - Free Exercise Clause - No Punishment of Religious Conduct Solely Because it Is Religious

SC has stated that the Free Exercise Clause prohibits gov from punishing conduct merely because it is religious or displays religious belief. A law that is designed to suppress actions only because the actions are religiously motivated is not a neutral law of general applicability. Such a law will be invalid unless necessary to promote a compelling interest.

Establishment Clause - Financial Benefits to Church-Related Institutions - Aid to Religiously Affiliated Grade Schools or High Schools - Aid Invalidated

SC has struck down the following state programs, either b/c they had a primary effect that advanced religion or b/c they involved excessive entanglement b/n gov and religion: (a) Programs paying a portion of private school teachers' salaries (for their secular classes) since the primary effect would be to advance religion and a system to ensure that the money/teachers not be used for religious purposes would involve excessive entanglements. (b) Programs reimbursing private schools for writing achievement tests (this would have the primary effect of advancing religion since the schools could write tests advancing their religious mission)

Commerce Power--"Substantial Economic Effect"

SC has sustained congressional power to regulate any activity, local or interstate, TV, radio, and mail transmission (including educational materials and sale of insurance), will constitute interstate commerce.

Freedom of the Press - Access to Trials - Protective Order in Publishing Information Gained in Pretrial Discovery

SC has upheld a state trial court protective order prohibiting a newspaper defendant in defamation suit from publishing, disseminating, or using information gained through pretrial discovery from the plaintiff in any way except where necessary for preparation for trial.

Equal Protection - Abortions

SC has upheld governmental refusal to pay for abortions. Court found that woman does not have a fundamental right to make her decision to have an abortion without government interference.

Establishment Clause - Financial Benefits to Church-Related Institutions - Aid to Religiously Affiliated Grade Schools or High Schools - Aid Upheld

SC has upheld state programs that: (a) Provide state-approved textbooks to all students; (b) Lend religiously neutral instructional materials to parochial schools as well as to public and other nonprofit private schools where the program did not define recipients by reference to religion and the challenger did not prove that the neutral aid was used for religious indoctrination; (c) Provide transportation to and from school to all students; (d) Reimburse private schools for the expenses of compiling state-required data, such as student attendance records, or administering and grading standardized state educational achievement tests; and (e) Provide "auxiliary services" to all disadvantaged children at their school, including parochial schools.

Hearings for Men Who Seek to Establish Paternity - Mother Married to Another Man

SC has upheld statute that presumed that child born during wedlock was the husband's child where the statute allowed an alleged biological father to have hearing regarding visitation rights, but the Court did not rule on whether biological father could be denied visitation under these circumstances w/out a hearing.

Quasi-Suspect Classifications - Legitimacy - Statutes of Limitations on Paternity Suits

SC struck down state statute that required nonmarital children to bring paternity suits within six years of their birth while allowing marital children to seek support from parents at any time. Court found that the law was not related to the state interest of preventing stale or fraudulent claims.

Equal Protection - Alienage Classifications - Children Living Apart from Parents

SC upheld state statute that permitted a school district to deny tuition-free education to any child (whether or not he is a U.S. citizen) who lived apart from his parent orl unlawful guardian if the child's presence in the school district was for the "primary purpose" of attending school in the district. State does not have to consider such a child to be a bona fide resident of the school district.

Political Questions

SC will not decide political questions, which are: (1) those issues committed by the Constitution to another branch of government; or (2) those inherently incapable of resolution and enforcement by the judicial process.

Fed Taxation and Regulation of State or Local Governments

SC will not likely strike down on 10th Amendment grounds a tax or regulation subjecting states or local governments to regulations or taxes that apply to both the public and private sectors. It has held that in such cases, the states' interests are best protected by the states' representation in Congress.

Advisory Opinions

SC's interpretation of the "case and controversy" requirement in Art. III bars rendition of advisory opinions. Thus, federal courts will not render decisions in moot cases, collusive suits, or cases involving challenges to governmental legislation or policy whose enforcement is neither actual nor threatened.

Sales Taxes

Sales taxes generally do not discriminate against interstate commerce; rather, the issue usually involves whether there is a substantial nexus between the taxpayer and the taxing state, or whether the tax is properly apportioned.

Power of States to Tax Interstate Commerce - General Considerations

Same general considerations applicable to state regulation of commerce apply to taxation. Pursuant to Commerce Clause, Congress has complete power to authorize or forbid state taxation affecting interstate commerce. If Congress has not acted, look to see whether the burden on interstate commerce outweighs the benefit to the state. Three tests must be met: (i) there must be a substantial nexus between the taxpayer and the state; (ii) the tax must be fairly apportioned; and (iii) there must be a fair relationship between the tax and the services or benefits provided by the state.

Insignificant State Involvement - Heavily Regulated Businesses and/or Granting of a Monopoly to a Utility - School

School operated by private corporation did not exercise state action when it discharged teachers (allegedly in violation of 1st Amendment rights) even though school had contracts with state to educate or care for many of its students and it received almost all of its operating funds from the government.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Buffer Zones - Designated Public Forum

Schools generally are not public forums. However, if a public school or university allows private organizations and members of the public to use school property for meetings when school programs or classes are not in session, the property is a designated public forum for that time, and the school cannot deny a religious organization permission to use the property for meetings merely b/c religious topics will be discussed. Such a restriction would be content discrmination.

14th Amendment - Scope of Congressional Power

Section 5 of the 14th Amendment is an enabling clause giving Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th Amendment. under Section 5, Congress may not expand existing constitutional rights or create new ones--it may only enact laws to prevent or remedy violations of rights already recognized by the courts. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (i.e., narrowly tailored) to solving the identified violation. Note, however, that when Congress is dealing with a type of discrimination that the SC reviews using heightened scrutiny (i.e., race, national origin, or gender), Congress will generally have more power to act.

Prior Restraints - Obscenity Cases - Seizure of Books and Films - Single Seizures

Seizures of a single book or film (to preserve it as evidence) may be made only with a warrant issued by a neutral and detached magistrate. And even here, a prompt post-sizure determination of obscenity must be available. If other copies of a seized film are not available to the exhibitor, he must be allowed to make a copy so that he may continue showing the film until a final determination has been made.

Freedom of Speech and Assembly - Reasonableness of Regulation - Overbroad Regulation

Since the purpose of the freedoms of speech and assembly is to encourage the free flow of ideas, a regulation will not be upheld if overbroad (i.e., prohibits substantially more speech than necessary). If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech, judged in relation to the regulation's plainly legitimate sweep, the regulation is facially invalid (i.e., it may not be enforced against anyone--not even a person engaging in activity that is not constitutionally protected) unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected expression. If a regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

Is the Bill of Rights Included Under 14th Amendment P&I Clause?

Slaughterhouse Cases held that the fundamental rights protected against federal abuse (1st 10 Amendments) are not privileges or immunities of national citizenship within the meaning of the 14th Amendment; nor are such other basic rights as the right to live, work, and eat. Thus, the guarantees of the Bill of Rights are protected from state action only by the Due Process and Equal Protection Clauses of the 14th Amendment.

Absence of Federal and State Powers

Some powers are denied to both Congress and the states. For example, the SC has held that the Qualificatoins Clauses setting the qualifications to serve in Congress are exclusive and cannot be altered by Congress or the states.

Power of States Expressly Limited

Some powers are exclusively federal b/c of express constitutional limitation on or prohibition of the states' exercise thereof--such as the treaty power, coinage of money, and duty on imports

Inherent Federal Powers

Some powers are exclusively federal in view of their nature--such as declaration of war, federal citizenship, naturalization, and borrowing money on the credit of the U.S. Any state exercise of these powers would basically subvert the federal system. On the exam, DO NOT allow states to take actions that might touch upon foreign relations.

Fundamental Rights - Right to Travel - Distinctions B/n Old and New Residents

Some state laws that have an adverse impact on new residents do not involve a waiting period. For example, a state may attempt to dispense state benefits on the basis of the length of time a persion has resided in state. State law that distinguishes b/n residents of state on sold basis of their length of residency will serve no legitimate state interest. This type of law should be stricken under the rational basis test b/c it has no rational relationship to any legitimate state interest

Self-Executing vs. Non-Self-Executing Treaties

Some treaties are expressly or impliedly self-executing. Others are not effective unless and until Congress passes legislation to effectuate their ends. If a treaty is not self-executing, it is not treated as the supreme law of the land until Congress acts to effectuate it, but the treaty itself can serve as an independent basis for Congress's power to adopt the required legislation (i.e., Congress need not point to one of its enumerated powers as the basis for the legislation).

Equal Protection - Discriminatory Motive

Sometimes a government action will appear neutral on its face and application but will have disproportionate impact on a particular class of persons (such as racial minority or women). Such a law will be found to involve a classification (and be subject to the level of scrutiny appropriate to that classification) only if a court finds that the lawmaking body enacted or maintained the law for a discriminatory purpose. In such cases, the court should admit into evidence statistical proof that the law has a disproportionate impact on one class of persons. However, mere statistical evidence will rarely be sufficient in itself to prove that the government had a discriminatory purpose in passing a law. Statistical evidence may be combined with other evidence of legislative or administrative intent to show that a law or regulation is the product of a discriminatory purpose.

Significant State Involvement - Official Acts

State action may be found in the absence of an unconstitutional statute or ordinance if it appears that the state sanctions constitutional violations by its own officers.

Insignificant State Involvement - Heavily Regulated Businesses and/or Granting of a Monopoly to a Utility

State action will not be found merely b/c the state has granted a monopoly to a business or heavily regulates it.

Nondiscriminatory Laws--Balancing Test (Commerce Clause)

Sometimes nondiscriminatory state or local law that regulates commerce may impose burden on interstate commerce; e.g., state law regulating truck size may burden interstate commerce b/c interstate trucking operations will be subject to law when their trucks enter the state. Nondiscriminatory law will be invalidated only if the burden on interstate commerce outweighs the promotion of legitimate (not discriminatory) local interests. This is a case-by-case balancing test. Thus, some regulation of trucks will be upheld because they do not impose an undue burden on interstate commerce, whereas other truck regulations will be invalidated because they would make it extremely difficult for interstate trucking operators to have their trucks travel into or through the state. State and local laws regulating commerce are more likely to be upheld when there is little chance that states would have conflicting regulations of the same subject matter. Different standard may apply to statutes regulating internal governance of a corporation adopted by the state of incorporation. Because of the states' long history of regulating internal governance of corporatoins that they create and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld.

Appointment of "Independent Counsel" (Special Prosecutor)

Special prosecutor w/ the limited duties of investigating a narrow range of persons and subjects (e.g., to investigate alleged misconduct of a government employee) is an inferior officer. Therefore, under the Appointment Clause, Congress is free to vest the power to appoint a special prosecutor in the judiciary.

Specific Relief Against Individual Federal Officer

Specific relief against officer as an individual will be granted if the officer acted ultra vires: a. Beyond his statutory powers; or b. The valid power was exercised in an unconstitutional manner

Freedom of Speech and Assembly - Scope of Speech - Symbolic Conduct

Speech includes not only verbal communication but also conduct that is undertaken to communicate an idea. Of course, not all regulation of symbolic conduct is prohibited. Court will uphold a conduct regulation if: (i) the regulation is within the constitutional power of the government; (ii) it furthers an important governmental interest; (iii) the governmental interest is unrelated to suppression of speech; and (iv) the incidental burden on speech is no greater than necessary. NOTE: regulation is not invalid simply because there is some imaginable alternative that might be less burdensome on speech.

Speech or Debate Clause - Speeches Outside Congress

Speeches and publications made outside Congress are not protected.

Freedom of Speech and Assembly - Government Speech - Limitation

Spending programs may not impose conditions that limit 1st Amendment activities of fund recipients outside the scope of the spending program itself. For example, while gov could prohibit use of fed funds to advocate for or support abortion, it could not require recipients of federal funds given to organizations to combat HIV/AIDS toa gree in their funding documents that they oppose prostitution.

Equal Protection - Alienage Classifications - Federal Classifications

Standard for review of fed gov classifications based on alienage is not clear but they never seem to be subject to strict scrutiny. Because of Congress's plenary power over aliens, these classifications are valid if they are not arbitrary and unreasonable. Thus, federal Medicare regulations could establish a five-year residency requirement for benefits that eliminated many resident aliens.

Significant State Involvement - Administration of Private Discriminatory Trust by Public Officials - 14th Amendment

State action exists where city personnel maintain a park, "open to all except blacks," under private trust.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Standard May Be Different for Minors

State can adopt specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. However, government may not prohibit sale or distribution of material to adults merely because it is inappropriate for children.

Unprotected Speech--Regulation or Punishment Because of Content--Clear and Present Danger of Imminent Lawlessness

State cannot forbid advocating the use of force or of law violation unless such advocacy (i) is directed to producing or inciting imminent lawless action, and (ii) is likely to produce or incite such action.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--True Privacy Actions--Publishing Information on Judge's Competency

State cannot make it a crime to publish information released in a confidential proceeding, concerning the competency of members of the state judiciary.

Fundamental Rights - Privacy - Use of Contraceptives

State cannot prohibit distribution of nonmedical contraceptives to adults except through licensed pharmacists, nor prohibit sales of such contraceptives to persons under 16 who do not have approval of a licensed physician.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--True Privacy Actions--Publishing Name of Juvenile Charged w/ Crime

State cannot require judicial approval b/f media can print name of juvenile charged with murder where name of juvenile was obtained through legal means

Significant State Involvement - Official Encouragement - Judicial Approval

State court enforcement of restrictive covenants prohibiting sale or lease of property to blacks constitutes state action even in civil proceedings between private properties.

Freedom of Association & Belief - Electoral Process - Party Regulation

State has less interest in governing party activities than in governing elections in general. Thus, the Court has held invalid a statute prohibiting the governing committee of a political party from endorsing or opposing candidates in primary elections. Similarly, it has held invalid state regulations concerning the selection of delegates to a national party convention and the selection of candidates at such elections.

Fundamental Rights - Privacy - Intimate Sexual Conduct

State has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature. Although the Court has not said what standard of review applies, it has indicated that a statute regulating such conduct cannot pass even the rational basis test b/c of the lack of a legitimate government interest.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - Multi-Member Districts

State is generally free to have some multi-member districts together with some single-member districts, as long as the number of members representing a district is proportional to its population. However, single-member of multi-member districts will be held to violate equal protection if the district lines were drawn on the basis of unconstitutional criteria, such as to suppress the voting power of racial minorities or an identifiable political group

Substantial Justification (Interstate P&I)

State law discriminating against nonresidents may be valid if the state has substantial justification for the different treatment. In effect, it must show that nonresidents either cause or are part of the problem it is trying to solve and that there are no less restrictive means to solve the problem.

Freedom of Association & Belief - Electoral Process - Regulations of Core Political Speech - Prohibiting Any Election Day Campaigning

State law prohibiting any campaigning on election day has been held invalid as applied to a newspaper urging people to vote in a certain way. The right to comment on political issues is one of the most essential elements of free speech, and such conduct by newspapers would pose little danger to conducting elections.

Prior Restraints - Sufficiency of Governmental Interest - Grand Jury

State law prohibiting grand jury witness from ever disclosing the testimony he gave to grand jury violates First Amendment. Such law is not narrowly tailored to a compelling interest since any such interest that the gov may have in protecting the grand jury process can be protected by a nonpermanent prohibition.

Regulations Limiting Access to In-State Products (Commerce Clause)

State law that makes it difficult or impossible for out-of-state purchasers to have access to in-state products (other than products owned by the state itself) is likely to be held invalid

Freedom of Association & Belief - Electoral Process - Party Regulation - Judicial Candidate Selection

State law that permits political parties to choose nominees for state judgeships at state conventions does not violate the freedom of association rights of candidates for judgeships simply b/c the historic domination of party leaders results in strongly favoring those that they support. Rationale: This process has been a traditional means of choosing party nominees.

Freedom of Association & Belief - Electoral Process - Ballot Regulation - Single Party Limitation

State law that prohibits an individual from appearing on the ballot as the candidate of more than one party does not impose severe burden on the association rights of political parties. The state's interest in ballot integrity and political stability are sufficiently weighty to justify the law.

Fundamental Rights - Privacy - Rights of Parents - Visitation

State law was found to be overbroad and in violation of parents' rights where it (i) authorized courts to grant "any person" (including grandparents) a right to visit a child upon finding that this would be in child's best interest, and (ii) did not allow judge to give significant weight to parents' offer of meaningful visitation opportunity and the traditional presumption that a fit parent will act in the child's best interests.

Implied Preemption--State Prevents Achievement of Federal Objective

State law will be held impliedly preempted if it interferes with achievement of a federal objective. This is true even if the state or local law was enacted for some valid purpose and not merely to frustrate the federal law.

Type of Process - Paternity Actions

State may allow paternity to be established in a support proceeding brought by a mother or child by a preponderance of the evidence--no greater burden of proof is required by the DPC. However, due process requires the state to pay for blood tests that might exculpate an indigent defendant in a paternity action if the state is responsible for the lawsuit (the suit is brought by a state agency or the state requires the mother to bring the civil paternity suit).

Freedom of Association & Belief - Electoral Process - Ballot Regulation - Primary Voting Regulations

State may enforce party rule requiring a person to be registered as a member of the party within a reasonable amount of time prior to a primary to be able to vote. It may also require that voters in a party's primary be registered in the party or as independents. Rationale: Burden on the party's associational rights is not severe. Thus, strict scrutiny does not apply and the state's important regulatory interests (e.g., in preserving political parties as viable identifiable groups, preventing party raiding, etc.) are sufficient to justify the restriction. However, state may not prohibit party from allowing independent voters to vote in party's primary if the party wishes to allow independent voters to participate; such a requirement constitutes a severe burden on the associational rights of the party and can be justified only if narrowly tailored to serve compelling interest.

Freedom of Religion - Free Exercise Clause - No Punishment of Beliefs - States May Not Exclude Clerics from Public Office

State may not exclude clerics from being elected to the state legislature or from other governmental positions because that exclusion would impose a disability on those persons based upon the nature of their religiuos views and their religious status.

Establishment Clause - Absolute Right Not to Work on a Sabbath Impermissible

State may not force employers to grant all employees an absolute right to refrain from working on their sabbath because the primary effect of such a law is to advance religion. However, state may require employers to make reasonable efforts to accommodate employee religious practices.

Regulations Prohibiting Out-of-State Wastes (Commerce Clause)

State may not prohibit private landfill or waste disposal facilities from accepting out-of-state garbage or waste or surcharge such waste. This rule applies even to hazardous wastes.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Permits

State may not require persons to obtain permits in order to canvass door to door for noncommercial or nonfundraising purposes

Establishment Clause - Financial Benefits to Church-Related Institutions - Tuition Tax Deductions or Credits Limited to Religious School Tuition

State may not use a system of statutory grants, tax credits, or tax deductions to reimburse parents or students for tuition paid only to religiously affiliated schools. However, a tax deduction to all students or parents based on the actual expenditures for attending any public or private school has been upheld. It would appear that a valid tax deduction must allow a deduction for: (i) expenditures for public as well as private schools; and (ii) some expenditures other than tuition (such as expenditures for school supplies or books) so that public school students or their parents may benefit from the deduction.

Abortion - Parental Consent

State may require minor to obtain her parents' (one or both) consent to an abortion if there is a "bypass procedure" whereby minor may obtain abortion (without notice to or consent of her parents) with the consent of a judge. Judge is required to make prompt decision as to (i) whether minor is sufficiently mature to make her own decision, and (ii) if she is not sufficiently mature, whether having an abortion without notice to her parents is in her best interests.

Fundamental Rights - Right to Vote - Candidates and Campaigns - Required Resignation of Office

State may require state officials to resign their office if they enter an election for another government office

Fundamental Rights - Right to Vote - Replacement of Incumbent Legislators

State may validly give to a political party the right to name an interim appointee to the legislature to fill out the unexpired term of a legislator from that political party who left office. No voter is denied equal protection by this system.

State Action - Tips for Bar Exam

State must be "significantly involved" in the private entity. merely granting a license or providing essential services is insufficient. States are not constitutionally required to outlaw discrimination. Constitution forbids only their encouraging or authorizing it.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Question of Fact and Law--Evidence--Similar Published Materials

State need not produce expert testimony. Evidence that similar materials are vailable on community newsstands or that the public has acquired a second-class mailing privilege, does not necessarily show that the material is not obscene and hence is not automatically admissible. Nor is there any automatic right to have other materials held not to be obscene admitted into evidence.

Field Preemption

State or local law may also be found to be preempted if it appears that Congress intended to "occupy" the entire field, thus precluding any state or local regulation. The courts will look at the federal regulatory scheme to deduce Congress's intent. For example, if the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found.

Discriminatory Regulations (Commerce Clause)

State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid.

Freedom of Association & Belief - Electoral Process - Ballot Regulation - Nonpartisan Blanket Primary

State primary ballot law providing that candidates self-identify their party preference and that the two top vote getters advance to the general election does not on its face violate the association rights of political parties. Rationale: (i) The law does not state that any candidate is a party's nominee, (ii) there was no evidence that voters would be confused by the self-identifications, and (iii) the state may design a ballot that will make this clear.

Quasi-Suspect Classifications - Legitimacy - Inheritance from Father

State statute cannot absolutely exclude nonmarital children from inheriting from intestate fathers. HOWEVER, to promote efficient disposition of property at death (an important government interest), state can require that paternity of the father be proved before his death since the requirement is substantially related to the important interest.

Unprotected Speech--Regulation or Punishment Because of Content--Statutes Must Not Be Vague--Construction May Save Vague Statute

State statute will be upheld if it meets the tests as construed by the courts of the state. Thus, a seemingly vague obscenity statute may be served by a state supreme court opinion that limits it to a proscription of depictions of specific types of sexual conduct.

No Direct Tax on Federal Instrumentalities

State tax levied directly against the property or operation of the federal government without consent of Congress is invalid

Equal Protection - Alienage Classifications - State and Local Classifications

State/local laws are subject to strict scrutiny if based on alienage. A "compelling state interest" must be shown to justify disparate treatment. Exception--if a law discriminates against alien participation in the functioning of the state government, the rational basis standard is applied.

Equal Protection - States May Eliminate Race-Based Preferences

States are not required to have affirmative action programs for admission to their universities. Moreover, states may eliminate existing race-based preferences, including by voter initiative. Court upheld the constitutionality of a Michigan initiative providing that the state and its political subdivisions could not discriminate or give preference based on race or gender in education, contracting, or employment.

Abortion - Informed Consent

States can require abortions to be performed by licensed physicians, and it is not an "undue burden" to require the physician to provide the woman with truthful information about the nature of the abortion procedure, the health risks of abortion and childbirth, and the probable gestational age of the fetus.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - One Person, One Vote - Congressional Elections

States establish the districts for congressional elections. However, the SC requires almost exact mathematical equality b/n the congressional districts within a state; thus, deviations of even a few percentage points b/n the congressional districts within a state may result in the invalidation of the congressional district plan.

Fundamental Rights - Privacy - Marriage - Prisoners' Rights

Statute or regulation that restricts the constitutional rights of prison inmates will be upheld as long as the statute or regulation is "reasonably related to legitimate penological interests"

Unprotected Speech--Regulation or Punishment Because of Content--Fighting Words--Words Likely to Incite Physical Retaliation

States free to ban use of "fighting words," i.e., those personally abusive epithets that, when addressed to the ordinary citizen, are inherently likely to incite immediate physical retaliation. This rule has been narrowly construed.

Fundamental Rights - Right to Vote - Primary Elections - State Regulation of Party Primaries

States may exercise some control over primary elections, but such regulation is subject to restrictions under the 1st Amendment (freedom of political association) and 14th Amendment (EPC). Thus, to prevent interparty "raiding," the SC has held that states can require a person to have been registered with a party for a reasonable time before that party's primary election in order to be eligible to vote in primary. However, if political party wishes to open its primary elections to anyone, whether or not registered with the party, the state cannot prohibit this because the state interest here is overriden by the right of political association

Fundamental Rights - Right to Vote - Candidates and Campaigns - Candidate Qualifications - Fees

States may not charge candidates a fee that results in making it impossible for indigents to run for office. An unreasonably high filing fee might be held totally invalid so that no candidates would have to pay the fee. A reasonable, valid fee would have to be waived for an indigent candidate who could not pay the fee.

Inter-governmental immunity

States may not tax or regulate federal government activity

Freedom of Religion - Free Exercise Clause - States Can Regulate General Conduct - Criminal Laws and Other Regulations

States may prohibit or regulate conduct in general and this is true even if the prohibition or regulation happens to interfere with a person's religious practices. The Free Exercise Clause cannot be used to challenge a law of general applicability unless it can be shown that the law was motivated by a desire to interfere with religion.

Fundamental Rights - Right to Vote - Primary Elections - States May Subsidize Primaries of Major Parties

States may subsidize the primaries of major parties without similarly defraying the costs of mechanisms through which minor parties qualify candidates for the general election., as long as new or small parties are given some effective way to qualify for the general election.

Can State Force Seller to Collect Use Tax?

States often force user to come forward and pay the state the use tax owed. However, state may force a nonresident, interstate seller to collect the use tax from the local buyer and remit it to the state if the seller has the substantial nexus required by the Commerce Clause. The substantial nexus requirement can be met if the seller engages in some significant activity in the buyer's state, e.g., maintains offices there. Merely soliciting orders by mail and shipping orders into the state is not sufficient.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--National Standard?

Statewide standard is permissible but not mandatory. Juror may draw on knowledge of the community or vicinity from which he comes and the court may either direct the jury to apply "community standards" without specifying the community, or define the standard in more precise geographic terms.

Establishment Clause - Financial Benefits to Church-Related Institutions

Statute authorizing gov aid to a religiously affiliated institution must be tested under the general test (secular purpose, primary effect, and excessive entanglement). However, the SC applies these tests with greater strictness when the gov aid is going to a religiously affiliated grade school or high school than it does then the aid is going to another type or religiously affiliated institution (such as college or hospital)

Protectionist measures that have been struck down under Interstate P&I Clause

Statute charging nonresident commercial fisherman substantially more for commercial fishing license than resident commercial fisherman. Statute giving resident creditors priority over nonresident creditors as to assets of foreign corporations in receivership proceedings. Statute or court rule requiring state residence to be licensed to practice law within the state. State income tax only on nonresidents who earn money within the state. State law requiring private sector employers to give hiring preference to residents absent closely related substantial justification; but states may require person to be a resident to hold government employment.

Freedom of Speech and Assembly - Falsity of Speech

Statute criminimalizing speech merely b/c it is false is a content regulation. While some categories of false speech are unprotected (e.g., defamation, false advertising, fraud, and perjury), those categorical exceptions are based on the harm caused. Speech is not unprotected merely for being false.

Freedom of the Press - Broadcasting Regulations - Grant of Equal Newspaper Space

Statute granting political candidates a right to equal space to reply to criticism by the newspaper violates First Amendment freedom of the press. Decisions respecting size and content of a newspaper are forbidden to government

Freedom of Association & Belief - Electoral Process - Limits on Contribution

Statute limiting election campaign contributions is not tested under strict scrutiny standard; rather, it must be "closely drawn" to match a "sufficiently important interest"--an intermediate scrutiny standard.

Substantive Due Process - Applicable Standards - Mere Rationality - Statutes Forbidding Nuisance or Promoting Community's Preferred Lifestyle

Statutes forbidding certain uses as nuisances have been sustained, as have all kinds of statutes designed to promote the public's enjoyment of space and safety or to promote a community's preferred lifestyle and character.

Freedom of the Press - Internet Regulation

Strict standard of First Amendment scrutiny, rather than the more relaxed standard applicable to broadcast regulation, applies to regulation of Internet. Rationale: In contrast to broadcasting, there is no scarcity of frequencies on the Internet and little likelihood that the Internet will unexpectedly invade the privacy of the home.

Three Factors to Determine whether Nondiscriminatory Tax is Valid

Substantial Nexus: State tax will be valid under Commerce Clause only if there is a substantial nexus between the activity or property taxed and the taxing state. Substantial nexus requires significant or substantial activity within the taxing state. Fair Apportionment: State or local tax affecting interstate commerce will be valid under the Commerce Clause only if it is fairly apportioned according to a rational formula (i.e., the tax should be based on the extent of the taxable activity or property in the state). Otherwise the activity or property would be subject to cumulative tax burdens. Fair Relationship: State or local tax affecting interstate commerce will be valid under the Commerce Clause only if the tax is fairly related to the services or benefits provided by the state.

Federal Officer as Defendant - Limitation

Suits against federal officer are deemed to be brought against the U.S. if the judgment sought would be satisfied out of the public treasury or would interfere with public administration and, therefore, are not permitted

Power of Congress fo Supersede or Preempt State Regulation

Supremacy Clause makes federal law supreme. Thus, if a state law regulating commerce conflicts with a federal law, state law will be void. Moreover, if Congress desires, it may preempt an entire area of regulation, thus preventing states from making any laws concerning the area preempted.

Preemption

Supremacy Clause of Article VI provides that Constitution, laws, and treaties made pursuant to it are supreme law of land.

Writ of Certiorari (Supreme Court)

Supreme Court has complete discretion to hear cases that come to it by writ of cert. A case will be heard if four justice agree to hear it. The

Court-Martial of American Civilians in Military Courts

Supreme Court has denied Congress the power to authorize the court-martial trial of American civilians as long as actual warfare has not forced courts to shut down, even though martial law has been declared; even though the civilians accused may have been members of the armed forces when committing the alleged offense or are dependents of military personnel accompanying the latter overseas or are civilian employees of the military forces at overseas bases and installations; such trials by court-martial violate the Fifth and Sixth Amendments, particularly the right to trial by jury.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Buffer Zones - Content Neutral

Supreme Court has for the most part found buffer-zone laws to be reasonable, content-neutral regulations of speech that further the important state interest of preserving access to healthcare facilities and maintaining public order.

Presumption Against Preemption

Supreme Court has stated that in all preemption cases, especially any involving a field traditionally within the power of the states (e.g., regulations involving health, safety, or welfare), it will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.

"Taking" vs. "Regulation" - Actual Appropriation or Physical Invasion - Exception--Emergencies

Taking is less likely to be found in emergency situations, even where there is destruction or actual occupation of private property

Speech or Debate Clause - Bribes

Taking of a bribe is not an act in the regular course of the legislative process and is, therefore, actionable.

"Taking" vs. "Regulation" - Use Restrictions - Temporary Denials of All Economic Use

Temporarily denying owner of all economic use of property does not constitute a per se taking. Instead, Court will carefully examine and weight all relevant circumstances--the planners' good faith, the reasonable expectations of the owners, the length of the delay, the delay's actual effect on the value of the property, etc.--in order to determine whether "fairness and justice" require just compensation.

Quasi-Suspect Classifications - Gender - Government Interest Must Be Genuine

The "important government interest" advanced to justify categorization on the basis of gender must be genuine--not hypothesized for the purpose of litigation defense. Neither may the government's justification rely on overbroad generalizations about males and females that will create or perpetuate the legal, social, and economic inferiority of women.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - Political Gerrymandering

The Court has NEVER ruled that a legislative redistricting map should be overturned on the basis of political gerrymandering, and a number of justices have suggested that political gerrymandering is a nonjusticiable issue.

Executive Privilege - Civil Trials

The Court has avoided ruling on the scope of executive privilege in a civil case. However, it has noted the need for information in a criminal case is "weightier," and the Executive's withholding of information in a civil trial would not impair the judiciary's ability to fulfill its responsibility to resolve cases as much as in criminal trial. Thus, it appears that an Executive Branch decision to withhold information will be given more deference in a civil trial than in a criminal trial.

Freedom of the Press - Broadcasting Regulations - Fairness Doctrine

The Court has upheld, under a regulatory "fairness doctrine" (which is no longer enforced), FCC orders requiring a radio station to offer free broadcasting time (i) to opponents of political candidates or views endorsed by the station, and (ii) to any person who has been personally attacked in the course of a broadcast, for a reply to the attack.

Nondiscriminatory Taxes (Interstate Commerce)

The Court reviews nondiscriminatory state and local taxes affecting interstate commerce and balances the state need to obtain the revenue against the burden the taxes imposes on the free flow of commerce--an approach similar to the one used for examining nondiscriminatory regulations to see whether they impose an undue burden on interstate commerce.

Procedural Due Process - Liberty - Exercise of Fundamental Constitutional Rights

The DPC protects a person's freedom to engage in activities that involve fundamental constitutional rights, such as the right to speak and associate, the right to travel, and the right to vote. Application: Government Employee's Freedom of Speech - Public employee may not be discharged for engaging in constitutionally protected speech. If a government employee is discharged for her speech or writing, a hearing must be held to determine whether the speech was protected. If so, the employee cannot be fired.

Prior Restraints - Obscenity Cases - Seizure of Books and Films - Forfeiture of Business

The First Amendment does not prohibit forfeiture of a defendant's adult entertainment business after the defendant has been found guilty of violating RICO and criminal obscenity laws, even though the business assets included nonobscene books and magazines, where the entire business was found to be part of the defendant's racketeering activity.

Freedom of the Press - Access to Trials - Access to Voir Dire

The First Amendment guarantee of public and press access to criminal trials also includes access to proceedings involving the voir dire examination of potential jurors. Sometimes, however, there may be a compelling interest in restricting access to such proceedings to protect the privacy of potential jurors or the fairness of the trial.

Freedom of the Press - Access to Trials

The First Amendment guarantees the public and press a right to attend criminal trials. But the right may be outweighed by an overriding interest articulated in findings by the trial judge. The right probably applies to civil trials although the SC has not conclusively resolved that issue.

Actual Hostilities (War)

The President may act militarily under his power as commander in chief of the armed forces and militia (when federalized), under Article II, Section 2, in actual hostilities against the U.S. without a congressional declaration of war. But Congress may limit the President under its power to enact a military appropriation every two years. (A military appropriation may not be for more than two years.)

Foreign Relations

The President's power to represent and act for the U.S. in day-to-day foreign relations is paramount. He has the power to appoint and receive ambassadors and make treaties (with the advice and consent of the Senate), and to enter into executive agreements. His power is broad even as to foreign affairs that require congressional consent. No significant judicial control has been exercised over this power.

Rights of National Citizenship

The SC has allowed Congress to limit the power of private individuals to infringe upon others' rights of national citizenship without pointing to any specific constitutional source for power.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Signs on Public Property

The SC has upheld a city ordinance prohibiting posting signs on public property (including sidewalks, crosswalks, street lamp posts, fire hydrants, and telephone poles), even if the sign is temporary in nature and could be removed without damage to the public property.

Unprotected Speech--Regulation or Punishment Because of Content--Clear and Present Danger--Sanctions Against Speech

The clear and present danger test allows for sanctions against speech causing demonstrable danger to important government interests. Disclosure of U.S. intelligence and personnel is "clearly not protected" speech.

Executive Privilege - Screening by Judge in Chambers

The court will determine in an in camera inspection which communications are protected and which are subject to disclosure.

Taxing Power - Determining What Is a Tax

The determination of whether a legislative enactment imposes a tax does not depend on the label Congress gives it but rather on its function.

Proper Apportionment - Tax on Instrumentalities Used to Transport Goods Interstate

The following methods have been upheld: (i) Using the proportion of miles traveled within the taxing state to the total number of miles traveled by the instrumentalities in the entire operation. (ii) Computing the average number of instrumentalities (tank cars) physically present in the taxing state on any one day during the tax year and taxing that portion at full value--i.e., as if in the state all year. NOTE: Because different states may use different apportionment formulas to tax the same property, there may still be some double taxation of the same instrumentalities. However, the double taxation should be minimal if proper apportionment formulas have been used.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Patently Offensive

The material must be patently offensive in affronting contemporary community standards regarding the description or portrayal of sexual matters.

Freedom of Speech and Assembly - Scope of Speech

The freedom of speech includes not only the right to speak, but also the right to refrain from speaking or endorsing beliefs with which one does not agree--the government may not compel an individual personally to express a message with which he disagrees.

Equal Protection - Remedying Past Discrimination

The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. Thus, if a court finds that a governmental agency has engaged in racial discrimination, it may employ a race-conscious remedy tailored to end the discrimination and eliminate its effects. A remedy of this type is permissible under the EPC b/c it is narrowly tailored to further a compelling interest (the elimination of the illegal or unconstitutional discrimination)

When Does Interstate Shipment End? (Course of Interstate Commerce)

The interstate shipment usually ends when it reaches its destination, and thereafter the goods are subject to local tax

Equal Protection - Proving Discriminatory Classification

The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny or intermediate scrutiny. There must be intent to discriminate on the part of the government. Intent can be shown shown in three ways: (i) facial discrimination; (ii) discriminatory application; or (iii) discriminatory motive.

Insignificant State Involvement - No Government Duty to Protect Individuals from Harm by Private Persons

The mere refusal of government agents to protect a victim from harm by a private person will not result in a finding that the harm was attributable to "state action," at least when state law does not give the victim a right to government protection. However, if government employees enter into an agreement or conspiracy with private persons to cause harm to a victim, the victim's injuries are the result of state action; the private persons, as well as the government employees with whom they conspired, will have violated the victim's constitutional rights.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - One Person, One Vote - Scope

The one person, one vote principles applies to almost every election where a person is being elected to perform normal governmental functions. However, there are a couple of exceptions: Appointed officials and officials elected "at large": The apportionment requirement is inapplicable to appointed officials. Neither does it apply in at-large systems of election because in such a system there are no electoral districts to violate the one person, one vote principle. However, if an at-large voting system were established or maintained for the purpose of suppressing the voting power of minority race voters, it would be unconstitutional. Special purpose government units (water storage districts): Gov can limit the class of persons who are llowed to vote in an election of persons to serve on a special purpose government unit if the government unit has a special impact on the class of enfranchised voters. To date, the SC has found only "water storage districts" to be so specialized that their governing boards are not subject to the one person, one vote principle.

Taking - "Just Compensation"

The owner is entitled of the fair market value of her property at the time of the taking--not the value it would have if put to its highest and best use. The measure is based on the loss to the owner, not the gain to the taker. Increases in value to the owner's remaining property as a result of the taking cannot be used to offset damages. Due process guarantees notice and hearing, administrative or judicial, on the amount of compensation, but the hearing need not precede the taking.

Extent of Commerce Power

The reach of the commerce power is broad. Any business that is open to interstate travelers or that uses products shipped in interstate commerce is covered.

Military Courts & Tribunals - Judicial Review

The regular (or state courts) have no general power to review court-martial proceedings. However, in habeas corpus cases, the Article III courts, including SC, may make a limited inquiry into the military court's jxn of the person and offense or the validity of the court's legislative action.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Narrowly Tailored

The regulation must be narrowly tailored (i.e., it may not burden substantially more speech than is necessary to further the significant government interest). However, the regulation need not be the least restrictive means of accomplishing the goal. NOTE: Regulation that is not narrowly tailored might also fail on overbreadth grounds.

Inverse Condemnation - Who may Sue

The right to claim a "taking" is not limited to persons who held title to the property at the time a challenged use restriction was imposed. A person who purchases property after a regulation is in place still may bring a taking claim.

Right to Travel and the Privileges and Immunities Clause

The right to travel, which is protected by the 14th Amendment, includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

Type of Process - Driver's License

The state generally must afford a prior hearing before a driver's license is suspended or terminated. However, a post-suspension hearing satisfies due process where a statute mandates suspension of a driver's license for refusing to take a breathalyzer test upon arrest for drunk driving.

State Regulation of Federal Government

The states have no power to regulate activities of federal government unless Congress consents to such regulation. Thus, instrumentalities and agents of federal government are immune from state regulations relating to performance of their federal functions.

Procedural Due Process - Liberty

The term "liberty" is not defined. It includes more than just freedom from bodily restraints (e.g., it includes the right to contract and to engage in gainful employment). Deprivation of liberty occurs if a person: (i) Loss significant freedom of action; or (ii) Is denied a freedom provided by the Constitution or a statute.

Freedom of Religion - Free Exercise Clause - States Can Regulate General Conduct - Criminal Laws and Other Regulations - Unemployment Compensation - Criminal Prohibitions

The unemployment compensation cases do not give individuals a right to disregard criminal laws due to their religious beliefs. Thus, unemployment compensation laws may disqualify persons fired for misconduct (which includes any violation of criminal law)

Ad Valorem Taxes - No Apportionment Required

The validity of state taxes on goods in interstate commerce is strictly a Commerce Clause question; i.e., either the goods are "in the course of" interstate commerce and exempt from tax or they are not. There is no need for apportionment.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - One Person, One Vote - State and Local Elections

The variance in the number of persons included in districts for the purpose of electing representatives to a state or local government body must not be unjustifiably large, but the districts need not be within a few percentage points of each other: If a state can show that the deviation from mathematical equality b/n districts is reasonable and tailored to promote a legitimate state interest, the law establishin the districts may be upheld.

Conviction by Senate (Impeachment)

Two-thirds vote in senate is necessary to convict

Privileges & Immunities Clauses

There are two Privileges & Immunities Clauses: the 14th Amendment Privileges or Immunities Clause and the Interstate Privileges and Immunities Clause of Article IV. The 14th Amendment clause protects attributes of U.S. citizenship and is rarely applicable. Article IV provision prevents some discrimination by states against nonresidents, and is usually more relevant on bar exam.

Substantive Due Process - Constitutional Source - Two Clauses

There are two separate clauses protecting substantive due process: (i) The DPC of the 15th Amendment (applies to fed gov); and (ii) DPC of 14th Amendment (applies to state and local governments) Same tests are employed under each clause

Procedural Due Process - Property - Public Education

There is a property interest in public education when school attendance is required. Thus, a significant suspension (e.g., 10 days) requires procedural due process.

Procedural Due Process - When Is Individualized Adjudication Required?

There is a right to procedural due process only when government acts to deprive individual of life, liberty, or property. There is no right to individualized adjudication when the government acts generally, even if the action will result in burdening individuals' life, liberty, or property interests.

Where Does Contract Clause Apply?

There is no comparable clause applicable to the federal government, although a flagrant contract impairment would be forbidden by the 5th Amendment DPC. The provision only applies to state LEGISLATION, not state court decisions.

Are there limits on Congress's disposition of property?

There is no express limitation on Congress's power to dispose of property owned by the U.S. The power extends to all species of property, such as leasehold interests and electrical energy, as well as ordinary realty and personalty. Moreover, disposal may involve direct competition with private enterprise and has never been invalidated on that ground.

Fundamental Rights - Right to Refuse Medical Treatment - Assisted Suicide

There is no general right to commit suicide; thus, a state may ban persons from giving individuals assistance in committing suicide. It is not irrational to permit competent persons to refuse life-sustaining treatment but prohibit physicians to assist in suicide b/c there is a logical, rational, and well-established distinction b/n letting someone die and making someone die.

"Taking" vs. "Regulation" - Use Restrictions - Utility Rate Regulation

There is no taking where the government sets rates that utility companies can charge, as long as the rates are not set so low that they are unjust and confiscatory.

Substantive Due Process - Applicable Standards - Mere Rationality - Lifestyle

There is, as yet, no recognized right to lead a certain lifestyle. Thus, the SC will uphold drugs prohibiting drugs, requiring motorcyclists to wear helmets, or requiring police officers to have short hair.

Two Requirements Preclude Finding of Bill of Attainder

These provisions require both judicial machinery for trial and punishment of crime and definition of criminal conduct in such general terms as not to ensnare within the definition of a single individual or small group for punishment b/c of past behavior.

Type of Process - Corporal Punishment in Public School

This may involve constitutionally protected "liberty." However, the traditional common law tort remedies for excessive punishment satisfy procedural due process, and a prior hearing is not required.

Military Government (War)

This power includes the establishment of military governments in occupied territories, including military tribunals.

Article III Courts

Those courts established by Congress pursuant to Article III, Section 1. Congress has the power to delineate the jurisdictional limits, both original and appellate, of these courts, although it is bound by the standards of judicial power set forth in Article III as to subject matter, parties, and the requirement of "case or controversy." Thus, Congress cannot require these courts to render advisory opinions or perform administrative or nonjudicial functions.

Post-War Economic Regulation

To a considerable extent, this pervasive regulatory power may be validly extended into post-wartime periods both to remedy wartime disruptions and to cope with cold war exigencies. Legislation in the field of veterans' rights and limitations thereon may be extended indefinitely as long as veterans or their relatives may survive.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Requirement of Factual Statement

To be defamatory, false statement must be viewed by reasonable person as a statement of fact rather than as a statement of opinion or parody. Furthermore, public figure cannot circumvent the First Amendment restrictions by using a different tort theory to collect damages for a published statement about him that is not a false statement of fact. NOTE: Fact that a publisher labels a statement as "opinion" will not provide First Amendment protection if the statement would reasonably be understood to be a statement of fact.

Delegation of Power - Uniquely Confined to Congress

To be delegable, the power must not be uniquely confined to Congress; e.g., the power to declare war cannot be delegated, nor the power to impeach.

State Action - Must Be Traditional and Exclusive Function

To be state action, the activity must be both a traditional and exclusive function. Thus, the SC has held that a warehouseman authorized by statute to sell goods stored with him for unpaid charges is not exercising state action when he makes the sale because, while resolution of private disputes is a traditional public function, it is not exclusive--the bailor had state law remedies to check abuses by the warehouseman. State action exists, and due process guarantees apply only if the creditor uses judicial or executive agencies to secure properties in the possession of the debtor.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Limited Public and Nonpublic Forums - Two-Factor Test

To be upheld, regulations must be: (1) Viewpoint neutral; and (2) Reasonably related to a legitimate government purpose.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Test

To be valid, government regulations of speech and assembly in public forums and designated public forums must: (i) Be content neutral (i.g., subject matter neutral and viewpoint neutral); (ii) Be narrowly tailored to serve an important government interest; and (iii) Leave open alternative channels of communication. Remember: Even if regulation meets the above conditions, it might still be struck down on other grounds.

Limits on Commerce Power

To be w/in Congress's power under the Commerce Clause, a federal law must either: (i) Regulate the channels of interstate commerce; (ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or (iii) Regulate activities that have a substantial effect on interstate commerce.

Freedom of the Press - Broadcasting Regulations - Newspaper Ownership of Radio or TV Station

To promote the diversity of information received by the public, the FCC may forbid ownership of a radio or TV station by a daily newspaper located in the same community.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Pictures of Minors

To protect minors, gov may prohibit sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children. Gov may also prohibit offers to provide (and requests to obtain) material depicting children engaged in sexually expliciti conduct when the prohibition requires scienter and does not criminalize a substantial amount of protected speech. Such offers of material that is unlawful to possess have no First Amendment protection.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Recovery for Depiction in a False Light

To recover damages for depiction in false light (as opposed to defamatory injury to reputation) arising out of comments directed at activities of public interest, individual must establish falsity and actual malice whether or not he qualifies as a public figure. However, it is assumed that the Court would not modify this to mirror the Gertz negligence rule for private plaintiffs.

Interstate Regulations (21st Amendment)

Transitory liquor (liquor bound for out-of-state destinations) is subject to the Commerce Clause. Thus, state prohibition on transporting liquor through the state would probably be held unconstitutional as violating the Commerce Clause.

Grounds for Impeachment

Treason, bribery, high crimes, and misdemeanors

Define treaty

Treaties are agreements between U.S. and foreign country that are negotiated by President and are effective when ratified by Senate.

Treaty Conflict with Constitution

Treaties are not co-equal with the Constitution. No treaty could confer on Congress authority to act in a manner inconsistent with any specific provision of the Constitution.

Treaty vs. Statute

Treaties prevail over conflicting state laws. If treat conflicts with federal statute, the one adopted last in time prevails. If treaty conflicts with U.S. Constitution, it is invalid

Treaty Power

Treaty power is granted to President "by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur." Art. II, Section 2, cl. 2

Appointment of Officers

Under Art. II, Section 2, the President is empowered "with the advice and consent of the Senate" to appoint "all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the U.S., whose appointments are not herein otherwise provided for ... but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Supreme Court Original (Trial) Jurisdiction

Under Article III, Section 2, the Supreme Court has original jxn "in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party." This provision is self-executing: Congress may neither restrict nor enlarge the Supreme Court's original jxn, but Congress may give concurrent jxn to lower federal courts and has done so regarding all cases except those between states.

Fundamental Rights - Right to Refuse Medical Treatment - Criminal Defendants

Under DPC, gov may involuntarily administer antipsychotic drugs to mentally ill defendant facing serious criminal charges in order to make him competent to stand trial if: (i) the treatment is medically appropriate, (ii) the treatment is substantially unlikely to cause side effects that may undermine the fairness of the trial, and (iii) considering less intrusive alternatives, the treatment is necessary to further important governmental trial-related interests.

Removal of Officers by President

Under SC's decisions, President probably can remove high level, purely executive officers (e.g., Cabinet members) at will, without any interference from Congress. However, after Morrison v. Olson, it appears that Congress may provide statutory limitations (e.g., removal for good cause) on the President's power to remove all other executive appointees.

Equal Protection - Standard of Review - Rational Basis - Deference to Legislature

Under rational basis, Court will usually defer to legislature's decision that a law is rational. Loose fitting laws are permissible here: The law need not be the best law that could have been written to achieve the legislative goal. Indeed, it need not go far at all toward a conceivable legislative goal; Court will uphold law taking "first step" toward any legitimate goal, even if the Court thinks the law is unwise.

No Loss of Citizenship Without Consent

Under the 14th Amendment, Congress may not take away the citizenship of any citizen--native born or naturalized--without his consent. Proof of Intent: Citizen's intent to relinquish citizenship may be expressed by words of conduct--and Congress may provide that such intent may be proven by a preponderance of the evidence.

Retroactive Legislation - Due Process Considerations

Under the DPC of the 5th and 14th Amendments, retroactive legislation or other governmental action may be, but is not necessarily, a violation of the Constitution. The question of whether a retroactive law violates due process is a substantive due process issue. If the law does not relate to a fundamental civil right, the retroactive law should be upheld if it is rationally related to a legitimate government interest.

Bar Membership and Public Employment - Restraints on Speech Activities of Government Employees

Under the First Amendment, speech generally cannot be regulated or punished based on the content of the speech unless the regulation or punishment is necessary to achieve a compelling government interest. However, special rules apply when the government seeks to punish a government employee for speech or speech-related activities.

Establishment Clause - Religious Activities in Public Schools - Accommodation of Religious Students - On-Campus Meetings

Under the Free Speech Clause, if a public school allows members of the public and private organizations to use school property when classes are not in session, it cannot deny a religious organization permission to use the property for meetings merely b/c religious topics will be discussed. Such an "equal access rule" does not violate the Establishment Clause because the primary purpose of such programs is secular (to accommodate all interests), people are not likely to assume that the government endorses the religious ideas discussed, and there is no excessive government entanglement, at least where the meetings are not run by school personnel.

Calling Forth the Militia

Under the Militia Clauses (Art. 1, section 8, cl. 15, 16), Congress has power to authorize the President to order members of National Guard units into federal service--even in circumstances that do not involve a national emergency. The president need not obtain the consent of the governor of a unit's home state to call it into such service.

Equal Protection - Standard of Review - Rational Basis - Burden of Proof

Under the rational basis standard, laws are presumed valid. Therefore, the challenger has the burden of proof. This is a difficult standard to meet given the deference the Court gives to legislatures under the rational basis standard.

Freedom of Speech and Assembly - Time, Place, and Manner Restrictions - Buffer Zones - Narrowly Tailored

Under this prong of the time, place, and manner test, buffer-zone laws will be upheld only if they burden no more speech than necessary to achieve the purpose of protecting access to healthcare facilities and maintaining order on public rights-of-way. Moreover, the right of access does not amount to a right to be free from all communication in the vicinity of a facility that might be unwelcome. Court decisions in this area tend to be very fact-specific, and the Court has indicated it is more likely to find a buffer-zone law narrowly tailored if the state has first tried less-restrictive measures to address the problems created by anti-abortion protests.

Discriminatory Taxes

Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause. Such taxes may also be held to violate the Interstate P&I Clause if they also discriminate against residents of the state, as well as the Equal Protection Clause if the discrimination is not rationally related to a legitimate state purpose.

Removal power

Unless removal limited by statute, President may fire any executive branch office. Congress can limit removal if: It is an officer where independence from President is desirable, and Congress cannot prohibit removal; it can limit removal to where there is good cause

Significant State Involvement - Official Encouragement - Peremptory Challenges

Use of peremptory challenges, even by private party, constitutes state action, both because jury selection is a traditional public function and because there is overt, significant participation by the government (the judge) in the jury selection process. Thus, private litigants and defendants are prohibited from using peremptory challenges in a discriminatory manner.

Use Taxes in Buyer's State

Use taxes are not considered to discriminate against interstate commerce even though they single out interstate commerce for taxation (i.e., they are imposed only on goods purchased outside the state), as long as the use tax rate is not higher than the sales tax rate. RATIONALE: The purpose of such a tax is to equalize the tax on in-state and out-of-state goods rather than to give in-state goods an advantage.

Define Use Tax

Use taxes are taxes imposed on the users of goods purchased out of state.

Implied Preemption--Actual Conflict Between State and Federal Law Requirements

Valid act of Congress or federal regulation supersedes any state or local action that actually conflicts with the federal rule--whether by commanding conduct inconsistent with that require by the federal rule or by forbidding conduct that the federal rule is designed to foster.

Treaty Conflict with Congressional Acts

Valid treaties are on a "supremacy parity" with acts of Congress; a conflict b/n an act of Congress and a treaty is resolved by order of adoption--the last in time prevails.

Tax on Instrumentalities Used to Transport Goods Interstate

Validity of ad valorem property taxes on instrumentalities of commerce (airplanes, train cars, etc.) depends on (i) whether the instrumentality has acquired a "taxable situs" in the taxing state (i.e., whether there are sufficient "contacts" with the taxing state to justify the tax), and (ii) since the physical situs of the instrumentalities may change from state to state during the year, whether the value of the instrumentality has been property apportioned according to the amount of "contacts" with each taxing state. (The taxable situs ("nexus") is required by the Due Process Clause to establish the state's power to tax at all, and apportionment is required by the Commerce Clause to prevent an intolerable burden on interstate commerce)

Right of Privacy

Various privacy rights, including marriage, sexual relations, abortion, and childrearing, are fundamental rights. Thus, regulations affecting these rights are reviewed under strict scrutiny6 and upheld only if they are necessary to a compelling interest.

Line Item Veto Unconstitutional

Veto power allows president only to approve or reject bill in toto; he cannot cancel part (through a line item veto) and approval other parts. The rationale for this is that the President's veto power does not authorize him to amend or repeat laws passed by Congress.

Exceptions to Sovereign Immunity

Waiver is permitted. States may be sued pursuant to federal laws adopted under section 5 of 14th Amendment. Congress can't authorize suits against states under other constitutional provisions. Federal government may sue state government. Bankruptcy proceedings

Ripeness considerations

What hardship will be suffered without pre-enforcement review? Fitness of issues and record for judicial review. Court will not hear case unless plaintiff has been harmed or there is an immediate threat of harm.

Commerce Power & Intrastate Activity

When Congress tries to regulate intrastate activity under the third the power to regulate activities with a substantial effect on interstate commerce, Court will uphold the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially effects interstate commerce. If the regulated intrastate activity is not commercial or economic, the court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do. Commerce Clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity, even if failure to undertake the activity may affect interstate commerce.

Fundamental Rights - Right to Travel - Interstate Travel - Standard of Review

When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirements normally should be subject to the "strict scrutiny" test. This means that the government must show that the waiting period requirement is tailored to promote a compelling or overriding interest. However, in some right to travel cases, the Court has not been clear as to whether it is using this strict scrutiny, compelling interest standard of review. The important point to note for the bar exam is that state residency requirements should not be upheld merely b/c they have some theoretical rational relationship to an arguably legitimate end of government.

Fundamental Rights - Privacy - Abortion - Remedy

When court is faced with statute restricting access to abortions that may be applied in unconstitutional manner as to to harm the mother's health, it should not invalidate the statute in its entirety if the statue has valid applications. Instead, the court should try to fashion narrower declaratory and injunctive relief against unconstitutional application.

Remedy--Inverse Condemnation

When government acts under the power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation. When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation. If the court determines that the government action amounted to a taking, government will be required to either: (i) Pay the property owner compensation for the taking; or (ii) Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect.

Prior Restraints - Obscenity Cases - Burden on Government

When government adopts a content-based, prior restraint of speech, the government has the burden of proving that the restriction is the least restrictive alternative to accomplish its goal.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--General

When person is sued for making a defamatory statement, the 1st Amendment places restrictions on ability of gov (through tort law and courts) to grant a recovery where the person suing is a public official or public figure or where the defamatory statement involves an issue of public concern. In these cases, plaintiff must prove not only the elements of defamation required by state law but also that the statement was false and that the person making the statement was at fault to some degree in not ascertaining the truth.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Private Individual Suing on Matter of Public Concern--Negligence Requirement

When private individual is defamed, there is less of a need to protect freedom of speech and press and more of a need to protect private individuals from injury from defamation b/c they do not have opportunities as effective for rebuttal as public figures. Accordingly, defamation actions brought by private individuals are subject to constitutional limitations only when the defamatory statement involves a matter of public concern. And even in those cases, the limitations are not as great as those established for public officials and public figures. When the defamatory statement involves a matter of public concern, there are two restrictions on private plaintiffs: (i) no liability without fault, and (ii) recovery of presumed or punitive damages is restricted.

Freedom of the Press - Monetary Damages for Failure to Keep Identity Confidential

When reporter or publisher promises a "source person" to keep his identity confidential and then publishes the source person's name, state contract law or promissory estoppel law may allow the source person to recover from the reporter or publisher any damages caused by the publication of his identity.

Unprotected Speech--Regulation or Punishment Because of Content--Defamatory Speech--Procedural Issues--Federal Summary Judgment Standard

When ruling on an MSJ in federal court defamation action in case involving issue of public concern, judge must apply the clear and convincing evidence standard. However, the SC has not clearly held that state courts must follow this practice under similar circumstances.

Equal Protection - Standard of Review - Strict Scrutiny - Burden of Proof

When strict scrutiny is applied, government will have the burden of proving that the law is necessary. Court will not allow a loose fitting law (i.e., if a law reaches more people or conduct than is necessary (overinclusive) or does not reach all of the people or conduct sought to be regulated (underinclusive), it will likely be struck down).

Quasi-Suspect Classifications - Legitimacy - No Punitive Purpose

When the court examines a classification based on illegitimacy, it gives greater attention to the purpose behind the distinction. It will not uphold discriminatory legislation intended to punish the offspring of illicit relationships.

Notice of Adversary Proceedings

When the government seeks to use a judicial or administrative process to take or terminate property interests,, it must give notice to those persons whose property interests may be taken by that process. The form of notice must be reasonably designed to ensure that those persons will in fact be notified of the proceedings.

Access to Courts - Indigent Plaintiffs - Nonfundamental Rights

When there is no fundamental right regulated by imposition of a fee, the government can refuse to grant the service to those persons who cannot pay the required fees.

Fundamental Rights - Right to Vote - Dilution of Right to Vote - One Person, One Vote - Establishing Voting Districts

Whenever governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. This is commonly referred to as the one person, one vote principle.

Substantive Due Process - Applicable Standards - Fundamental Right - Strict Scrutiny

Where law limits fundamental right, strict scrutiny will apply, and the law (or other gov action) will be upheld only if it is necessary to promote a compelling or overriding interest.

Unprotected Speech--Regulation or Punishment Because of Content--Obscenity--Material Designed for Deviant Group

Where the allegedly obscene material is designed for and primarily disseminated to a clearly defined deviant sexual group (e.g., sadists) rather than to the public at large, the prurient appeal requirement is satisfied if the dominant theme of the material, taken as a whole, appeals to the prurient interest of that group.

Exclusive State Powers

Whereas the federal government has only those powers granted to it by the Constitution, the state governments are governments of "unlimited" powers, having all powers not prohibited to them by the Constitution. This is recognized by the Tenth Amendment, which provides that all powers not delegated to the federal government by the Constitution are reserved to the states (or to the people). However, given the expansive interpretation of federal powers, little state power is exclusive.

Separation of Powers Limitations

While Congress has broad power to delegate, the separation of powers doctrine restricts Congress from keeping certain controls over certain delegates. E.g., Congress cannot give itself the power to remove an officer of the executive branch by any means other than impeachment (e.g., if Congress delegates rulemaking power to an executive branch agency (e.g., the FCC), it may not retain the power to fire the agency head). Similarly, Congress cannot give a government employee who is subject to removal by Congress (other than by impeachment) purely executive powers.

Discriminatory Taxes - Choosing the Proper Clause

While a state or local tax that discriminates against interstate commerce generally violates the Commerce Clause, the Clause is not always the strongest argument against the tax. Interstate Privileges and Immunities Clause: If a state or local tax discriminates against a natural person who is a nonresident, the Article IV Interstate P&I Clause is the strongest argument against the tax's validity because it is more direct that a Commerce Clause argument. Equal Protection: Where Congress Approves the Discrimination: Although the SC normally uses the Commerce Clause to invalidate discriminatory legislation, it may also find that such discrimination violates the Equal Protection Clause. This is important where Congress has given the states the power to do something that would otherwise violate the Commerce Clause: Congress can give states the power to take actions that would otherwise violate equal protection. Thus, if Congress has approved a type of state tax that discriminates against out-of-state businesses, that state tax will not violate the Commerce Clause, but it might violate equal protection. The Court may use equal protection analysis rather than Commerce Clause analysis to strike state taxes that are imposed on the basis of a suspect classification or that burden of a fundamental right. A state tax system giving tax exemptions only to long-time residents of the state and denying a similar tax exemption to newer residents will be held to violate the Equal Protection Clause.

What Type of Process Is Required?

While all intentional governmental deprivations of life, liberty, or property require fair process, what constitutes fair process in terms of the timing and scope of the hearing varies according to the circumstances of the deprivation. The Court will weigh: (a) The importance of the individual interest involved; (b) The value of specific procedural safeguards to that interest; and (c) The governmental interest in fiscal and administrative efficiency. In all situations, the Court will probably require fair procedures and an unbiased decisionmaker. Normally, the person whose interest is being deprived should also receive notice of the government's action and have an opportunity to respond before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable. The Court has made the following rulings with regard to specific types of deprivations.

Freedom of Speech and Assembly - Content-Neutral Speech Regulations

While content-based regulation of speech is subject to strict scrutiny, content-neutral speech regulations generally are subject to intermediate scrutiny--they will be upheld if the government can show that: (i) they advance important interests unrelated to the suppression of speech, and (ii) they do not burden substantially more speech than necessary or are narrowly tailored to further those interests.

Freedom of the Press - Cable TV Regulation

While generally regulations of newspapers are subject to strict scrutiny, and regulations of the broadcast media are subject to less critical review, regulations of cable TV transmissions are subject to review by a standard somewhere in between these two. Rationale: The physical connection to a viewer's television set makes the cable subscriber a more captive audience than a newspaper reader and distinguishes cable from newspaper, which cannot prevent access to competing newspapers. On the other hand, unlike broadcast media, which is limited to a small number of frequencies, there is no practical limitation on the number of cable channels; thus, the government's interest in protecting viewers' rights is weaker with regard to cable.

"Taking" vs. "Regulation"

While government must fairly compensate owner when her property is taken for public use, it need not pay compensation for mere regulation of property. Thus, whether government action amounts to a taking or is merely regulation is a crucial issue. The question is one of degree; there is no clear cut formula for determining whether there has been a taking.

Limitation--"Downstream" Restrictions (Commerce Clause)

While state may choose to sell only to state residents, it may not attach conditions to sale that would discriminate against interstate commerce

Limitation--Interstate P&I Clause (Commerce Clause)

While state or local government does not violate the Commerce Clause by preferring its own citizens while acting as a market participant, there is no market participant exception to the Interstate Privileges and Immunities Clause. Thus, a regulation that interferes with private sector employment may violate the P&I Clause unless the regulating entity can show substantial justification for regulation

Unprotected Speech--Regulation or Punishment Because of Content--Fighting Words--Statutes Regulating Fighting Words

While this classification of punishable speech exists in theory, the Court rarely upholds punishments for the use of such words. Statutes that attempt to punish fighting words tend to be overbroad or vague; the statute will define the punishable speech as "opprobrious words," "annoying conduct," or "abusive language." Such statutes will fail, as their imprecise terms could be applied to protected speech.

Mootness Exceptions

Wrong that is capable of repetition but evading review (e.g., Roe v. Wade) Voluntary cessation: If defendant voluntary halts offending conduct but is free to resume it at any time, case will not be dimissed as moot. Class action suits - even if main plaintiff's case is moot case will not be dismissed if challenged conduct threatens a member of the class.

Can U.S. sue a state?

Yes, U.S. can sue a state without its consent

Quasi-Suspect Classifications - Gender - Examples of Invalid Discrimination Against Men

a) Denial to admit males to a state university or nursing school. b) Law that provides that only wives are eligible for alimony c) Law that permits unwed mother, but not unwed father, to stop adoption of offspring d) Law providing a higher minimum drinking age for men than for women

Quasi-Suspect Classifications - Gender Examples of Valid Discrimination Against Men

a) Law punishing males but not females for statutory rape (law helps prevent pregnancy of minors) b) Male-only draft registration c) Law granting automatic U.S. citizenship to nonmarital children born abroad to American mothers but requiring American fathers to establish paternity in order to make such children U.S. citizens