MBE Con Law

Fundamental Rights

(1) Contraceptives, (2) Marriage, (3) Family Relations, (4) Private Education, (5) Possession of Obscene Material, (6) Right to Travel, and (7) Right to Vote. No right to die via suicide or assisted suicide, but there is a right to refuse medical treatment. Same-sex intimacy is not considered a fundamental right, but it is unconstitutional to criminalize such behavior. The Court seemed to apply rational basis with "teeth."

Other Gov Endorsement of Religion

(1) Displays that celebrate the holiday season without favoring one religion over another are generally upheld as constitutional, (2) a city may grant a license permitting a private group to put up a cross in a city park near a statehouse, (3) a city may not deny a request to ceremonially fly a religious flag if it accepts all secular requests for ceremonial flag flying, (4) placement of the Ten Commandments on the walls of courthouses is unconstitutional (no secular purpose), (5) Sunday closing laws for the purpose of rest have been held constitutional because it is a secular purpose, and (6) delegation of authority to religious orgs is unconstitutional. Posting the Ten Commandments as a monument along with many other monuments surrounding the State Capitol will not violate the EC. Religion can be included as one of many elements, but it cannot be the sole focus.

Executive Power

(1) Enforcement of Laws, (2) Appointment, (3) Removal, (4) Veto, (5) Pardon, (6) Executive Privilege, (7) Military, (8) Treaty, (9) Executive Agreements

Exceptions to 11A Sovereign Immunity

(1) Fed suits by one state against another, (2) fed gov against a state, (3) subdivisions of states (cities, towns, counties) do not have immunity, (4) private citizen may sue a state requesting an injunction, (5) a state may consent to suit in fed court if it clearly waives, and (6) Congress can authorize individual citizen private suits involving monetary damages to compensate for state violations of post-Civil War 13th, 14th, and 15th amendments pursuant to its enforcement powers. Waiver must be done expressly and unequivocally.

1A Rights

(1) Freedom of Religion and Separation of Church and State, (2) Free Exercise Clause, and (3) Freedom of Expression. Applies both to fed gov and the states through the 14A.

Powers of Congress

(1) Legislative, (2) Commerce, (3) Taxing, (4) Spending, (5) War and Defense, (6) Immigration and Naturalization, (7) Investigatory, (8) Property, (9) Eminent Domain, (10) Admiralty and Maritime, (11) Bankruptcy, (12) Postal, (13) Copyright and Patent, (14) Speech and Debate, (15) Civil War Amendments, and (16) Delegation

Case or Controversy Requirements

(1) Standing, (2) Ripeness, (3) Mootness, (4) Political Questions, (5) Abstention

Obscene Speech

(1) The average person, applying local contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (national standard).

Enumerated Powers

(1) To collect taxes and spend money for the general welfare, (2) to borrow money on the credit of the US, (3) regulate commerce, (4) declare war, and (5) to raise and support the army, navy, and militia.

Right to Travel

14A Privileges or Immunities Clause allows citizens to travel freely from state to state and to set up residency in a new state. The right to international travel is not absolute and may be subject to reasonable restrictions in the name of national security.

Bills of Attainder

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct.

Conditional Permits

A condition on the grant of a permit for land development. Permissible if (1) there is a logical nexus between the condition and the gov purposes; and (2) there is rough proportionality between the impact on the proposed development and the gov objectives served by the condition.

Abstention

A fed court may abstain or refuse to hear a particular case when the case includes undecided issues of state law. The fed court may abstain if the meaning of a state law or regulation is unclear. Where a state court proceeding is going on, the fed court will abstain from hearing the same matter.

Political Questions

A matter that the Constitution assigned to another branch of gov or that is incapable of a judicial answer (it is political in character).

Free Exercise Clause

A person's religious beliefs are absolutely protected. The gov may not punish an individual by denying benefits or imposing burdens based on religious belief. The gov may not determine the truth or falsity of a person's religious beliefs, but it may determine a person's sincerity in his or her claim of religious belief. Where an individual's conduct is motivated by their religious beliefs, the state may regulate or prohibit the activity if the regulation is "neutral in respect to religion and is of general applicability." Rational basis review is applied.

Taxation of State by the Fed Gov

A state is immune from fed taxation if the tax is applied to unique state activities or essential gov functions.

Examples of Free Exercise Clause

A state law outlawing polygamy was upheld. The Court struck down a free exercise challenge by a Jewish Air Force doctor who violated uniform dress requirements by wearing a yarmulke while on duty. The SS tax applied to an Amish employer was held constitutional, even though his religious beliefs prohibited him from making payments and from receiving benefits.

Ex Post Facto Laws

A statute violates the ex post facto clause if it: (1) makes criminal an act that was not a crime when committed; (2) prescribes greater punishment for a crime after its commission; (3) decreases the amount of evidence required for conviction; or (4) extends the SOL for a crime as to which the previously applicable SOL has already expired. Involves a trial; does not single out an individual or a group.

Adequate and Independent State Grounds

Although a state court decision may involve a fed question, if the state court judgment can be supported on an adequate and independent state ground, SCOTUS will not take jurisdiction. To do so would be tantamount to rendering an "advisory opinion." Applies only to SCOTUS. Will usually be adequate if it invalidates something—a state law or a contract. On the other hand, a state law will usually not be adequate if the law or contract is upheld under both state and fed law. EXCEPTION: If the state court says, in interpreting the state constitution, it was merely copying the fed constitution, then no clear, independent state ground exists.

Public Employment

An individual cannot be denied public employment based upon membership in a political org, unless the position is a high-level policy-making position (public defender is not). An individual may be denied public employment based on political association if the individual: (1) is an active member of a subversive org; (2) has knowledge of the illegal aims of the org; and (3) has a specific intent to further those illegal aims. Can be required to take an oath to support the Constitution and to oppose the overthrow of the gov by illegal means. Gov cannot require: (1) public employees to swear not to aid, advise or influence the Communist Party; (2) employees to swear to inspire reverence for the flag; or (3) school children to recite the Pledge of Allegiance. May be disciplined or fired for speech if: (1) speech is not a matter of public concern; or (2) speech is potentially disruptive to the workplace (even if it is a matter of public concern).

Contract Clause

Applies only to state legislation, and not to state court decisions or to the fed gov. When determining whether a contract may be modified, courts will consider (1) the severity of the impairment; and (2) the importance of the public interest to be served.

Appointment Power

Appoints "high-level officials" such as Ambassadors and Cabinet members with the advice and consent of the Senate. Congress can delegate appointment of "inferior" officers (anyone who has a superior) to: (1) the President; (2) the judiciary; or (3) the head of an executive department.

Ripeness

Bars consideration of claims before the claim's issue has fully developed.

Rational Basis Review (SDP)

Burden is on P to show either: (1) that the gov interest being served is not legit, or (2) if the gov's interest is legit, that the legislation is nevertheless not rationally related to promoting it. Both over-inclusive and under-inclusive laws will satisfy.

School Children

Can be disciplined for speech that is potentially disruptive.

Low-Value Speech

Commercial Speech and Sexual or Indecent Speech

Delegation of Power

Congress can create an executive agency (i.e., FDA) and give the agency some legislative power that will prevail over inconsistent state law. Congress can delegate power so long as there is some "intelligible principle" that guides the agency.

Commerce Power

Congress can regulate (1) channels of interstate commerce (highways, waterways, and air traffic); (2) instrumentalities of interstate commerce (cars, trucks, ships, planes, products/goods that move across state lines); and (3) activities that substantially affect interstate commerce. Cannot use the power to regulate intrastate non-economic activity (crime, possession of handgun, loansharking). EXCEPTION: Regulating intrastate non-economic activity with a "comprehensive scheme." Cannot overcome sovereign immunity; but enabling powers can.

Cumulative Effect Doctrine

Congress can regulate activities that have a tiny effect on interstate commerce independently, when all such activities are put together, a substantial cumulative effect upon interstate commerce will result.

Impeachment Power

Congress can remove the President, fed judges, and any fed official from office. The House has the sole power to impeach. The Senate has the sole power to try impeachments. A two-thirds vote in the Senate is required for conviction. Impeachment by itself does not carry any penalty beyond removal from office. Impeachable offenses: treason, bribery, and other high crimes and misdemeanors.

Spending Power: Receipt of Fed Funds

Congress can use its spending power to get around limits on its regulatory power. It may pass a law offering money to states or individuals in exchange for "x". Often, "x" is not something that Congress could order the state or individual to do directly. Congress may place a condition on the receipt of fed funds by a state if (1) the spending serves the general welfare, (2) the condition is unambiguous, (3) the condition is related to the fed program, (4) the state is not required to undertake unconstitutional action, and (5) the amount in question is not so much that the state is coerced into accepting the funds. Congress can give money to political candidates and state that, in return, they must abide by certain expenditure limits.

Investigatory Power

Congress has broad investigatory powers that may extend to any matter within its legitimate lawmaking functions. Congress can do things necessary to facilitate an investigation (i.e., cite a witness who fails to appear for contempt), but it cannot override any person's constitutional rights.

Bankruptcy Power

Congress has the power to "establish uniform Laws on the subject of Bankruptcies throughout the US."

Military Powers

Congress has the power to declare war. If Congress has not done so, the President's powers are limited to using military force in response to a surprise attack upon the US. If the President and Congress disagree, the President prevails only with respect to battlefield tactical decisions.

Civil War Amendments

Congress has the power to enforce: (1) the 13A, which bans slavery; (2) the 14A, which prohibits states from violating due process, equal protection, and privileges and immunities; and (3) the 15A, which prohibits states from discriminating with respect to race in voting rights. With respect to the 14A and 15A, Congress can only regulate states, not private individuals. With respect to state govs, such govs must have engaged in widespread violations of the Amendment. The legislative remedy must be "congruent and proportional to" the violations. If Congress passed valid legislation to enforce the 14A or 15A legislation, recall that sovereign immunity under the 11A will not apply.

Taxing Power

Congress has the power to impose and collect taxes in order to pay debts and spend for the general welfare. A congressional act purporting to be a "tax" should be upheld as a valid exercise of the taxing power if: (1) it raises revenue; (2) it was intended to raise revenue even if it doesn't; or (3) Congress has the power to regulate the activity that's being taxed.

Substantial Effect

Congress has the power to regulate any economic activity, whether carried on in one state or many, which has a substantial effect upon interstate commerce. Includes formation of unions.

Property Power

Congress has the power to regulate or dispose of fed prop. If dealing with a fed territory and not a state, Congress has a general legislative power and can pass any law it would like. Includes designated waterways on the prop.

Power of Eminent Domain

Congress has the power to take private property for public use (implied power, not expressly granted in the Constitution).

Copyright and Patent Power

Congress may "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

War and Defense Powers

Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline, and call forth a militia. During wartime, Congress has the power to: (1) activate the military draft and selective service; (2) initiate wage, price, and rent control of the civilian economy; and (3) exclude civilians from certain restricted areas. Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants. A question might ask what rights a terrorist has with respect to detention. Both US citizens and non-US citizens within the US (or US territories) are entitled to Due Process rights.

Title VII

Discrimination "on the basis of sex" includes discrimination based on sexual orientation and gender identity. Also used in Title IX and the Affordable Care Act.

Abortion

Dobbs: Abortion is no longer considered a fundamental right. It is now within the purview of the states. Legal theory to privacy rights still exists, just not for abortion.

Temporary Restrictions

Does not permanently deprive the owner of all economically beneficial uses of his land. A court will look at both the dimensions of a prop interest and the term of years.

Removal Power

Executive officials: The President may remove any executive appointee without cause (i.e., an ambassador or cabinet member). Executive officials having fixed terms: The President must have cause to remove executive officers who have fixed terms and officers who perform judicial or quasi-judicial functions (e.g., a member of the FTC). Fed judges: The President cannot remove judges, even for cause. The only way a fed judge may be removed is by impeachment. Congressional approval/removal: Congress cannot require the President to get congressional approval before removing someone; Congress cannot remove an official itself.

Supremacy Clause

Fed law is supreme over state law.

Legislative Power

For a fed law to be constitutional: Congress has the powers the Constitution gives it and no others. Congress must have the power to pass the law, and the law must not violate a constitutional right. For a state law to be constitutional: the law must not violate a constitutional right. Watch out for an answer that says Congress had the power to enact the law under its fed police power or Congress' power to promote the general welfare. These powers do not exist unless discussing the District of Columbia or some other federal territory. Congress passes a bill with a majority in both houses. The President then signs the bill or vetoes it. If the bill is vetoed, Congress can override the veto if it gets a vote of two-thirds majority in each house. Sources: (1) Enumerated Powers, (2) Enabling Clauses, and (3) Necessary and Proper Clause

Rational Basis Review (EPC)

For situations of disparate impact. Same standard as rational basis review for SDP. EXCEPTIONS: (1) If the purpose of the measure being challenged was intended to have a racially disproportionate effect, then it is intentional discrimination and will face SS, and (2) if a neutral standard is being applied in a discriminatory way, it will face SS. Applies for age, disability, and alienage/undocumented immigrants (fed), wealth.

Sexual or Indecent Speech

Fully protected but can be regulated on the basis of secondary effects. Secondary-effects regulations must serve a substantial gov interest and leave open reasonable alternative channels of communication.

Right to Vote

Generally, the right to vote comes from the 1A Right of Association and the 14A. However, there are more specific amendments regarding the right to vote: 15A: States cannot discriminate with respect to race and right to vote. 19A: States cannot discriminate with respect to sex and right to vote. 24A: No poll taxes. 26A: Right to vote for all citizens 18 years or older. Restrictions that are constitutional: (1) reasonable residency and voter registration requirements, (2) reasonable regulation of time and manner of casting votes, and (3) denying felons the right to vote. Restrictions that are unconstitutional (SS applies): (1) cannot impose poll tax, (2) cannot require voters at school board elections to own prop, and (3) cannot count votes using standards that lack uniformity or are too vague.

Necessary and Proper Clause

Gives Congress the implied power "to make all laws which shall be necessary and proper" to carry out an enumerated power. The Necessary and Proper Clause as an answer by itself will usually be incorrect.

Vagueness

Gov regulations must be drawn "with narrow specificity" and not vague. Examples: (1) statute making it a crime to treat the flag contemptuously; and (2) State law that denies a gov job to people who are subversive.

State Powers

Have police power. They can pass laws without identifying a source of power for doing so. However, there are constitutional limits on state police powers: Exclusive Fed Power: Reserves certain enumerated powers exclusively for the fed gov; Individual Rights: Restricts the state govs from acting in violation of constitutional provisions; and Preemption: Under the Supremacy Clause, if Congress enacts legislation with the intention of preempting state law, the congressional regulation will control. No preemption for regulation of health and safety matters, which is primarily and historically a matter of local concern.

Congressional Limits on the Executive

If Congress is acting within its constitutional powers, Congress may block the President from acting.

Mootness

If a controversy or matter has been resolved, then the case will be dismissed as moot. EXCEPTION: It is a practical impossibility for the case to be fully heard or go up on appellate review before P's claims, or the claims of other individuals who are members of a class action become moot.

Providing Public Services through Religious Institutions

If the gov has a sex education program where it gives funding to both secular and religious orgs to carry out the program, it is constitutional.

Article III, Section 2 Jurisdiction Limits

Law-based: Cases arising under the Constitution or fed law, and cases of admiralty and maritime jurisdiction. Party-based: US is a party (must begin in lower levels of fed courts and not SCOTUS), between two or more states, between a state and citizen(s) of another state, diversity jurisdiction, and ambassadors/consuls.

De Jure Segregation

Laws that deliberately segregate on the basis of race. Faces SS; but may pass (i.e., where police are separating a crowd by race in the middle of a riot).

Conduct Regulation

Laws that regulate conduct and create an incidental burden on speech are allowable if: (1) the regulation furthers an important or substantial gov interest that is unrelated to the suppression of free expression; and (2) the incidental restriction on speech is no greater than is necessary to further that interest. Gov can restrict people from burning their draft cards.

Congress's Power Over the Courts

Lower courts: Constitution grants Congress power to create courts inferior to SCOTUS and prescribe their powers (i.e., change jurisdiction, eliminate, or create courts). Congress cannot take a case from appellate jurisdiction and move it to original jurisdiction (Marbury v. Madison).

Prisoners

May be restricted by a regulation that is rationally related to a legit penological objective

Postal Power

May establish Post Offices and Post Roads.

Speech and Debate Clause

Members of Congress cannot be punished or prosecuted for anything they say during debate on the floor in either house.

Unprotected Speech

Must pass rational basis test. Includes (1) speech that advocates violence or unlawful action, (2) fighting words, (3) hostile audience speech, (4) obscene speech, and (5) defamatory speech.

Press

No greater freedom to speak than an ordinary member of the public. A newsperson has no 1A right to refuse to testify before a grand jury. In general, radio and television broadcasting can be more closely regulated than the print media or a private individual because they have a license from the gov and are exercising a privilege the gov gives them. Cable television receives 1A protection somewhere between that of broadcast TV and newspapers and citizens. Gov can ban offensive sexual content and speech on broadcast television. Where cable TV operators are subjected to content-neutral regulations, intermediate scrutiny is applied. Where content-specific regulation is imposed, the Court has yet to select a standard of review; however, the Court allows cable TV operators the right to ban "indecent" programming on channels that are leased outright to unaffiliated third parties (but not to public access channels).

Veto Power

Once Congress has passed legislation by a majority vote in each house, the President must sign the bill for it to become law. If the President vetoes it, Congress must override the veto. If the President takes no action within 10 days, it becomes law. Pocket Veto: If the bill is presented to the President less than 10 days before the end of a legislative session, then the President can "pocket veto" it. Congress has the power to override a veto by a two-thirds vote in both the Senate and House. Line-item Veto: A president cannot cancel particular provisions of new fed legislation. The President has to either accept a bill or veto it as a whole.

Jurisdiction of SCOTUS

Original jurisdiction over cases involving ambassadors, foreign diplomats, and states. Congress cannot enlarge or restrict SCOTUS's original jurisdiction. Appellate jurisdiction exists where the Constitution or a fed law is at issue.

Third Parties Who Have Standing

P can raise the constitutional rights of a third party where: (1) P has suffered injury; (2) a special relationship exists between P and third party because of the connection between the interests of P and the constitutional rights of the third party; and (3) the third party is unable or finds it difficult to bring suit on his or her own behalf. An org has standing to assert the claims of its members, even if the association has not suffered any injury itself, if: (1) the members would have standing to sue in their own right; (2) the interest asserted is germane to the association's purpose; and (3) neither the claim asserted nor the relief requested would require the individual members to participate in the lawsuit.

Standing

P must show a direct and personal injury, actual or imminent, caused by the action that he or she is challenging. E.g., legislator who does not like legislation passed; private individual who merely believes a law is unconstitutional; and taxpayer who does not want tax dollars used to enforce a law he believes is unconstitutional. EXCEPTION: TP can challenge a law believed to violate the 1A Establishment Clause. P must show that they will benefit from the remedy sought in the litigation and that the court can provide that remedy.

State Action vs. Private Action

P must show that there is gov action. Constitutional rights can be violated only by gov actors, not by private actors with the exception of the 13A and the (1) Public-Function Theory and the (2) Significant State Involvement Theory. 13A does not have a state action requirement; it applies to private individuals.

Enforcement of Laws

President can enforce but not create laws.

Pardon Power

President can only issue pardons for fed crimes, not state crimes. For a state crime, the governor can offer clemency. A pardon cannot undo an impeachment, because it is not a criminal conviction. It cannot restore someone to office.

11A Sovereign Immunity

Private individuals cannot sue states for money damages in any court.

Defamatory Speech

Private person, matter of private concern - P does not need to prove actual malice. P need only show negligence in order to recover according to common law defamation principles. Private person, matter of public concern - P must prove negligence about the truth or falsity of the statement (no malice required). Public official/figure, matter of public or private concern - P must prove the state law requirements of defamation and "actual malice." Actual malice = knowledge of the falsity or reckless disregard of the truth or falsity of the statement. Private person suing media for false-light invasion of privacy concerning matter of public interest - P must prove actual malice. This standard is higher than in cases when a private P sues for defamation over matters of public interest. In the latter cases, P need only prove negligence. A newspaper or broadcaster cannot be held liable for publishing truthful info obtained from the public record. Any newsworthy and true info is also protected

Due Process Clause (DPC)

Procedural Due Process and Substantive Due Process

Privileges and Immunities under Article IV, Section 2/Comity Clause

Prohibits states from discriminating against non-residents (based upon the fact that they do not reside in the state) with respect to rights and activities that are fundamental to the national union. Invalid forms of non-resident discrimination: (1) state statutes that require non-residents to pay a higher fee for commercial licenses; (2) commuter taxes that apply to non-residents, but not to residents; or (3) state laws requiring employers to give hiring preference to state residents. Types of discrimination that have been upheld: (1) state statute requiring non-residents to pay higher fees for recreational licenses than residents, and (2) when the purpose of discrimination is to preserve natural, state-owned resources. The state can discriminate if it is substantially related to a substantial state interest. Corps cannot assert these rights, but can protect itself from such discrimination via the DCC.

Commercial Speech

Protected by the 1A if it is not false or deceptive and does not relate to unlawful activity. If commercial speech satisfies these requirements, gov regulation of the speech must satisfy the three-part test: (1) serve a substantial gov interest; (2) directly advance the substantial gov interest; and (3) not be more extensive than is necessary to serve that interest. A state can: (1) discipline lawyers for in-person solicitation of clients for personal gain because of the potential for overreaching, or (2) prohibit commercial billboards. A state cannot: (1) ban advertisement of drug prices, (2) prohibit attorneys from advertising legal services, or (3) ban all advertising for legal products.

PDP

Protects against gov deprivation of "life, liberty, or property" without due process of law. Applies to all people (not just citizens) as well as corps. Liberty = freedom from bodily restraint and physical punishment. Property = public education, public employment (if fixed-term employment or can be fired only for cause), welfare benefits, and driver's license. If state can take something away from a person for no reason at all, there is no property interest. Requires a notice and a hearing. Factors include (1) importance of the individual interest protected, (2) risk of an erroneous deprivation of this interest through the procedures used, and (3) the gov's interest in streamlined procedures.

Spending Power

Provides Congress with the power to spend for the general welfare. Do not say something is unconstitutional because it is not for the general welfare.

Gov Aid to Religious Schools

Providing bus fare for both public and private (including some religious) schools has been found to be constitutional. States can provide money to both public and private schools for: (1) secular textbooks; (2) standardized secular exams; (3) school lunches; (4) library media materials and computers; and (5) interpreters for deaf students. States cannot give money: (1) to be used directly for religious instruction; or (2) to religious secondary schools - even for the salaries of teachers of secular subjects because of the risk of "excessive government entanglement." This is not true at the university level. The states can fund the salaries of secular teachers because it is assumed that their professional norms will prevent them from engaging in religious indoctrination If a tax deduction is given to all parents based on actual expenditures for children attending any public, private, or religious school, it will be upheld. A voucher program that allows parents to send their children to parochial or religious schools with state aid instead of to failed public schools is allowed because aid is neutral with respect to religion to a broad class of citizens, defined without reference to religion, and parents direct aid to religious schools as a result of their own independent and private choice. A voucher program that provides parents a choice as to where they send their children to school cannot exclude religious schools from this voucher program.

Rational Basis Review "With Teeth"

Recent cases have held classifications based on sexual orientation that appear to discriminate based on that classification are unconstitutional because the legislation lacked a legit gov purpose. In each case, the legislation failed to even pass the low-level scrutiny of rational basis review. Undocumented immigrant children have a right to free public elementary and secondary education. The Court held that the discrimination against the children "can hardly be considered rational unless it furthers some substantial goal of the state."

Religious Activities Conducted at Public Schools

Religious activities conducted in public schools violate the EC because their primary purpose is to promote religion. Invalid activities at public schools: (1) prayer and bible reading in public schools, (2) a period of silence "for meditation or voluntary prayer," (3) posting of just the Ten Commandments on the walls of classrooms, and (4) Rabbi/other cleric to conduct non-denominational prayer as part of a graduation ceremony. Valid activity: Religious club holding its meetings in a public school A truly neutral moment of silence would likely be found constitutional, because it shows no religious preference. A state legislature may employ a chaplain to conduct an opening day prayer. The state cannot put religious classes in public schools (i.e., anti-evolution laws).

Privileges or Immunities Under the 14A

Right to (1) travel across state lines and establish residence in a new state; (2) petition Congress; (3) vote for fed offices; (4) assemble; and (5) enter public lands. Corps not protected. The Privileges or Immunities Clause of the 14A is frequently a wrong answer.

Possession of Obscene Material

Right to possess obscene material in the privacy of one's home. However, there is not a protected right to buy or sell that same material. EXCEPTION: The state can criminalize even the private possession of child pornography.

Tax Deductions for Religious Institutions

SCOTUS has upheld the validity of a prop tax exemption for religious institutions, if treated the same as other non-profits. A tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the EC as an endorsement of religion.

Strict Scrutiny (EPC)

Same standard as SDP. Applies to alienage/resident noncitizens (state), domestic travel, national origin, race, and voting.

De Facto Segregation

Segregation in fact but not by operation of law. No discrimination because there is no state action. School district may not assign individual students to schools based on race to achieve "voluntary integration" or "racial balancing," when school segregation is caused by social factors, or de facto segregation. A school district is permitted to carry out voluntary racial balancing by "structural" measures, such as redrawing school zones or building new schools, in order to remedy de facto discrimination.

Hostile Audience Speech

Speech which elicits an immediate violent response against the speaker by an audience may be grounds for prosecution. The police, however, must make reasonable efforts to protect the speaker, to guard against a "heckler's veto" of unpopular speech.

Non-Public Forums

Speech-related activities at non-public forums, such as military bases, jails, gov workplaces, and mailboxes can be regulated by viewpoint-neutral regulations. The regulation must be reasonably related to a legit gov purpose. Gov can: (1) prohibit demonstrations on jailhouse grounds, (2) close military bases to political speeches and leaflet distribution, (3) regulate speech in gov workplaces, and (4) sell commercial advertising on a city bus but refuse to sell such space for political advertising. Gov cannot deny use of public school facilities to religious groups if other public and private groups are allowed similar access.

Dormant Commerce Clause

States cannot discriminate against out-of-state economic actors. If burden is only on in-state actors, it is ok. If a state law discriminates on its face against out-of-state goods or economic actors, the state must show: (1) the regulation serves a compelling interest; and (2) the regulation is necessary to achieve the compelling interest. State laws that regulate interstate commerce even-handedly to effectuate a legit local public interest will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. EXCEPTIONS: (1) Congress may affirmatively authorize states to legislate in areas that would violate the DCC, and (2) when states act as market participants, they may discriminate between in-state and out-of-state businesses. The DCC applies to state taxes.

SDP Directed at Economic Regulations

Subject to rational basis review.

SDP

Substantive rights not specifically referenced by the Constitution's text are protected.

Speech that Advocates Violence or Unlawful Action

Such advocacy is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

Enabling Clauses

The 13A, 14A, and 15A give Congress the power to enforce those amendments by appropriate legislation.

Constitutional Provision Relied On by the Fed Gov

The Bill of Rights can be invoked against the fed gov. If the fed gov is discriminating, the DPC of the 5A should be invoked.

Constitutional Provision Relied on by the States

The Bill of Rights can be invoked against the states using the 14A DPC. EXCEPTIONS: The 5A right to indictment by grand jury and the 7A right to a jury trial in civil cases. For discrimination by state govs, usually the EPC of the 14A will apply unless: (1) the state is discriminating against out-of-state business interests or corps. For that, the DPC (DCC) might apply; or (2) the state is discriminating against citizens who have moved from another state. For that, the Privileges or Immunities Clause of the 14A applies.

Admiralty and Maritime Power

The Necessary and Proper Clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country.

Executive Privilege

The President has an absolute privilege to refuse to disclose info related to national security. Other confidential communications between the President and advisors are presumptively privileged. The purpose of this is to allow the President to seek candid advice. The presumption is overcome when confidential communications are subpoenaed as evidence in a crim trial.

Executive Agreements

The President has the power to enter into executive agreements with foreign nations. Executive agreements are the sole responsibility of the President, and do not need to be ratified by the Senate. Executive agreements do not prevail over fed law. Executive agreements prevail over inconsistent state law.

Treaty Power

The President has the power to make treaties with the consent of the Senate. The Senate must ratify by a two-thirds vote before it becomes fed law. Treaties have the same status as fed law and will override earlier fed law if ratified by the Senate. A new fed law enacted after the treaty will override that treaty. Treaties take precedence over any conflicting state law (regardless of whether the treaty precedes or follows the enactment of the state law).

Pretrial Publicity Restraining Order

The court considers three factors in determining if a restraining order against pretrial publicity is appropriate: (1) nature and extent of the pretrial publicity; (2) availability of other measures to mitigate the effects of pretrial publicity; and (3) the likely effectiveness of the restraining order. Pretrial gag orders are usually unconstitutional if there are alternative means to prevent pollution of the jury pool such as: (1) careful voir dire of jury; (2) a change of venue; or (3) postponement of the trial. Injunctions must be obeyed or appealed; they cannot be ignored even if erroneous.

Taxation of Fed Gov by a State

The fed gov and its agencies and instrumentalities are immune from state taxation and regulation that would interfere with their performance of fed functions. State tax applies on a non-discriminatory basis to private individuals making commercial use of fed prop.

Anti-Commandeering Doctrine

The fed gov can't force states to act in their sovereign capacities (i.e., legislate or enforce laws). The 10A is frequently a wrong answer choice, except when the facts show the fed gov "commanding" the states. It does not matter if a state is happy to obey the fed gov regarding legislation or enforcement of a law. It is still unconstitutional. The Spending Clause can often be used instead to achieve the same result.

5A Takings Clause

The fed gov cannot take private prop for public use without just compensation. This prohibition applies to the states as well through the DPC of the 14A. Gov itself does not have to use the land. "Public use" = "public purpose." City must prove that exercise of the eminent domain power is rationally related to a conceivable public purpose. Gov or private corp does not have to try to buy the land before taking.

Family Relations

The gov cannot prohibit members of an extended family from living in a single household. The state can ban unrelated persons from living together in a single-family residence.

Prior Restraint

The gov cannot suppress or restrain speech in advance of its publication or utterance. Strong presumption that prior restraints are illegal. EXCEPTIONS: Classified military info; and a gov agency can require prepublication review of writings related to employment of past or present employees where such a review is necessary to protect national security. May require a license or permit for such activities as a parade, demonstration, or rally. A licensing statute that is valid on its face must be obeyed and a permit denial cannot be ignored, even if the statute is applied unconstitutionally. Where a statute is facially void (i.e., gives the licensing officials unrestricted discretion), a speaker need not even apply for a permit. In this case, one may exercise their 1A rights on the public prop without a permit.

Freedom of Expression

The gov may not interfere with or distort the marketplace of ideas, especially with respect to political speech. SS applies when the gov engages in content-based discrimination. Cannot prohibit desecration of the American flag or speech critical of foreign govs near embassies. EXCEPTIONS: (1) If the gov passes SS (banning child porno), (2) unprotected or low-value speech, (3) gov as speaker, (4) content-neutral conduct regulation, and (5) content-neutral time, place, and manner regulation.

Time, Place, and Manner Regulations

The gov may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks—places historically associated with expressive conduct (e.g., picketing, leafleting, and broadcasting).

Intermediate Scrutiny

The gov must show that the measure being challenged is substantially related to an important gov interest. Applies to gov discrimination regarding gender and illegitimacy. Illegitimacy question will probably be unconstitutional.

Judicial Limits on Congress and the President

The only thing a court can do is to hold a federal law unconstitutional. Courts cannot enforce the judgments, so they need cooperation from the official whose conduct they believe is unconstitutional. Most often the president will comply.

Public Forums

The regulation must: (1) be content-neutral, as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others); (2) be narrowly tailored to serve an important gov interest; and (3) leave open alternative channels of communication. Gov can: (1) require large gatherings to get a permit to use public prop (the criteria to receive a permit must be defined and content-neutral), and (2) restrict the volume and hours of amplifiers. Gov cannot: (1) require parades or marches to pay for police protection, or (2) enact a complete ban on door-to-door solicitation.

Exceptions to Free Exercise Clause

The state can't deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath. The state can't require Amish children to attend high school.

Gender Discrimination

Unconstitutional: (1) A state law giving preference to men over equally qualified women to be administrators of decedents' estates; (2) the military cannot make male servicemen automatically eligible for housing benefits while female service members have to prove that their husbands are financially dependent upon them; (3) authorizing alimony payments to women but not to men; and (4) higher drinking age for men than for women. Constitutional: (1) The Court upheld the registration of males but not females for draft by the military because Congress, pursuant to its military powers, had determined that this was necessary to further important gov interests; and (2) State statutory rape laws may set the age of consent higher for females than for males. This is based on an actual biological basis. Females can become pregnant and there is a state interest in preventing teen pregnancy. If a question involves traditional stereotypes about gender roles, it is probably unconstitutional. Benign discrimination in favor of women gets upheld to make up for past discrimination either by the person who is offering the remedial program or to make up for societal discrimination (affirmative action based on gender).

Strict Scrutiny (SDP)

Under such a review, the burden is on the gov to show both: (1) that the gov interest being served is of a compelling nature, and (2) that its legislation is narrowly tailored to achieve that interest. Both over-inclusive and under-inclusive laws will likely fail.

Sexual Orientation

Use rational basis with teeth review. Criminalizing same-sex intimate acts serves no legit gov purpose and is unconstitutional. Definitional provisions for marriage and spouse lack a constitutional legit purpose and is unconstitutional against the DPC. Right to same-sex marriage is constitutional under DPC and EPC.

School Segregation

Various plans to hinder desegregation have been deemed unconstitutional, including the closing of all public schools. School boards have an affirmative duty to eliminate intentional racial segregation of schools. Court-ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system, some sort of de jure segregation. Schools may consider race for admissions but quotas are disfavored.

Overbreadth

When a state has the power to regulate an area dealing with free speech, it must do so in a way that is narrow and specific, and not overly broad so as to have a "chilling effect" upon protected speech. Overbreadth is an exception to third-party standing.

Alienage Discrimination by States

When states discriminate against resident noncitizens, apply SS. EXCEPTION: Some jobs or activities may be withheld from resident noncitizens, including (1) police officers; (2) gov officials; and (3) public school teachers. Rational basis review applies to discrimination against undocumented immigrants. However, states cannot enact their own immigration policy. That is reserved for the fed gov. Undocumented immigrant children have a right to free public elementary and secondary education. The Court used rational basis with teeth.

Appropriations Power

Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to impound (i.e., refuse to spend or delay spending) the authorized funds.

Establishment Clause

Where a law prefers one religion or religious sect over others, SS applies. The appropriate test for a potential Establishment Clause claim is to interpret the Establishment Clause using an originalist approach, examining historical practices and understandings, and including an examination of the potential for coercion. Kennedy v. Bremerton School District: Coach praying on the field alone after a football game, even though he was a public employee in a public place, was not engaged in speech ordinarily within the scope of his duties as coach. It was not gov speech. SS applies. There is no coercion to make anyone else pray with him or listen to the prayer.

Public-Function Theory

Where a private entity is carrying on activities traditionally performed by the gov. This theory is also known as entwinement. E.g., a private company owns an entire town or a cruise ship that you cannot leave; does not include a privately owned shopping center.

Significant State Involvement Theory

Where a private party's action is closely encouraged and supported by the state, the private party's action can be treated as action by the gov. This exception is also known as entanglement. E.g., a privately owned restaurant rents space in gov building; a private org that regulates athletic comps in public schools; does not include granting a liquor license or a charter.

Direct Gov Appropriation

Where the gov actually takes someone's prop.

Regulatory Taking

Where the gov doesn't take prop, but imposes a regulatory requirement that is so onerous as to effectively amount to a taking. (1) The regulation requires the prop owner to suffer some permanent physical invasion; (2) the regulation deprives the prop owner of all economically beneficial use to the prop; or (3) the gov will balance the economic versus physical impact of the regulation on the prop owner, as well as the duration and character of the gov action.

Gov as Speaker

Where the gov is the speaker (not a private actor), the gov may say what it wants.

Fighting Words

Words likely to incite an ordinary citizen to commit acts of immediate physical retaliation may be punished. The speech must be more than annoying or offensive; it has to be a direct personal insult. "Fighting words" statutes are subject to facial invalidity if the conduct proscribed is vague (e.g., a law prohibiting "opprobrious words") or overbroad. "Fighting words" statutes designed to punish certain viewpoints are unconstitutional.