Constitutional Law

Alienage Discrimination by States

-strict scrutiny NOTE: Court opinions and law textbooks have historically used the term "alien." More modern terms are immigrant, nonresident, or noncitizen. You should be aware of all these terms and may see any of them on the bar exam. We have included the more modern terms in your bar notes. § Resident Noncitizens: When states discriminate against resident noncitizens, apply strict scrutiny. EXAMPLE: States cannot issue commercial fishing licenses to U.S. citizens, but not issue them to resident noncitizens. EXAMPLE: States cannot deny financial aid for higher education to resident noncitizens. § Public-Function Exception: Some jobs or activities may be withheld from resident noncitizens, including: · Police officers; · Governmental officials; and · Public school teachers. § Undocumented Immigrants: Rational basis review applies to discrimination against undocumented immigrants. However, states cannot enact their own immigration policy. That is reserved for the federal government. § *Undocumented Immigrant Children: The Court determined that undocumented immigrant children have a right to free public elementary and secondary education. The Court used a stringent version of the rational basis scrutiny test (rational basis review "with teeth") and held that the discrimination against the children "can hardly be considered rational unless it furthers some substantial goal of the state."

Title VII

Bostock v. Clayton County is not a case dealing with substantive due process or equal protection, instead the court was interpreting a narrow set of terms in the context of employment discrimination under Title VII. In 2020, the Supreme Court ruled that, with regard to employment discrimination under Title VII, discrimination "on the basis of sex" includes discrimination based on sexual orientation and gender identity [Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020)]. While the decision in Bostock was limited to interpreting the language of Title VII, lower courts have since applied the same logic in interpreting Title IX (education) and the Affordable Care Act (healthcare).

JUDICIAL REVIEW AND FEDERAL JURISDICTION

Article III, Section 2 limits the jurisdiction of the federal courts to two types: · Law-based Jurisdiction: o Cases arising under the Constitution or federal law; o Cases of admiralty and maritime jurisdiction. · Party-based Jurisdiction: o Controversies to which the U.S. shall be a party; o Controversies between two or more states; o Cases between a state and citizens of another state; o Cases between citizens of different states and the amount in controversy is over $75,000 (diversity cases); and o Cases affecting ambassadors and consuls.

FIRST AMENDMENT FREEDOMS

Freedom of Religion and Separation of Church and State · The 1st Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." o Applies to both the federal government and the states through the 14th Amendment. · Establishment Clause o Rule (discriminatory legislation): Where a law prefers one religion or religious sect over others, strict scrutiny applies. o The Supreme Court has held that 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, 142 S. Ct. 2407 (2022)].

fundamental rights hypo

HYPOTHETICAL: A state has recently enacted a statute that allows voters to not register as a member of a political party. However, in a presidential election only members of a registered political party may vote. Aamir, a voter not registered with a political party, sues for the right to vote in a presidential election. Will he be successful? What if Aamir was suing for the right to vote in a primary election? A state cannot block you from voting in a presidential election if you are not a member of a political party. The plaintiff will be successful with respect to the general presidential election. With respect to the primary, political parties are sufficiently intertwined with a state that for some things they will be considered state actors. However, to say that their primary is closed to party members is a reasonable restriction and not unconstitutional.

taxing power hypo

HYPOTHETICAL: In this year's budget, Congress attaches a stipulation on school breakfast funding to the states requiring the recipient state to offer and pay for universal health care of its citizens. Will the stipulation be upheld in a challenge? No. There is no obvious relation between breakfast funding and universal health care. The condition that Congress placed on these federal funds is not sufficiently related to the federal program for which the funds are being used.

PRIVILEGES AND IMMUNITIES

Privileges or Immunities under the Fourteenth Amendment · "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." · Very limited application and primarily includes the right to: o Travel across state lines and establish residence in a new state; o Petition Congress; o Vote for federal offices; o Assemble; and o Enter public lands. · Corporations are not protected.

bar question

Question 2 The Federal School Lunch Program provides breakfast and lunch to public school students, subject to income eligibility. Pursuant to federal statute, the director of the school lunch program for any district may, if in doubt about eligibility, submit the question to the appropriate federal district court for guidance to aid in his decision. The same federal district court has original jurisdiction over challenges to eligibility determinations. State Green institutes a charter school program by which public schools are formed and run semi-independently by private groups with public funds. Under the program, 10% of the public schools within the state are to be run as charter schools. The director of the Federal School Lunch Program believes that children at the privately-run schools are ineligible for the program and, pursuant to the statute, petitions the federal district court for a determination regarding their eligibility. State Green challenges the statute as unconstitutional. The court will most likely find the federal statute: A) Constitutional, because the federal court has subject-matter jurisdiction over the question presented. B) Constitutional, because federal programs have authority to control the method of resolution of disputes involved in their implementation. C) Unconstitutional, because the federal statute placing jurisdiction in the federal court violates the 11th Amendment. D) Unconstitutional, because the federal statute requires the federal court to render an advisory opinion. The best answer is (D). The provision is unconstitutional because it requires the court to render an advisory opinion. There is no injury and no dispute. There is no case or controversy.

EQUAL PROTECTION OF THE LAWS

Constitutional Basis - Where does it come from? · For the states: the 14th Amendment Equal Protection Clause. · For the federal government: the 5th Amendment Due Process Clause. · Equal protection requires the government to justify when it discriminates. EXAM TIP: For an equal protection question, identify: (1) the type of discrimination; (2) against whom; and (3) identify and/or apply the level of scrutiny attached to that discrimination against that particular group. 2. Standards of Review · Rational basis will be the level of review in situations of disparate impact. Disparate impact, by itself, is not discrimination. Applies to non-suspect groups EXAMPLE: If an employer administers a test to see which employees are eligible for promotion, and it is neutral on its face, but one race scores higher than the other, there is no discrimination.

which constitutional provisions 2

EXAM TIP: The Privileges OR Immunities Clause of the 14th Amendment is frequently a wrong answer on the MBEâ. However, it may be a right answer with regard to the right to travel (e.g., moving from one state to another). · NOTE: The Privileges AND Immunities Clause of Article 4 prohibits states from discriminating against non-residents (e.g., a commuter tax that applies to non-residents but not residents of the state).

dormant commerce clause hypo

HYPOTHETICAL: A state legislature, at the urging of the melon farm lobby, enacted a specific Melon Packing Act to ensure that melons grown in state were safely transported, hence preserving the highly appealing appearance for which the state's melons were known. The Act, which required special protective packs, affected only melons that were grown in state. Farmer sued for injunctive relief, claiming the act violated the Commerce Clause. How would a court rule? There is no discrimination here and no burden on interstate commerce. Thus, the Act is constitutional under the Dormant Commerce Clause.

state action requirement exception 2

HYPOTHETICAL: Max works as a waiter for the All-American cruise line, a domestic cruise line sailing between Miami and Los Angeles via the Panama Canal. He lives on the boat for two months at a time, with three days off in between. He decided to start an organization for politically active employees, but was told that he could not do so while on the boat. He sues, claiming that his First Amendment rights have been violated. Will he be successful? Max will be successful if he can demonstrate that the boat is like a company town. If employees are free to leave the boat or have other ways to promote their free speech rights will make it less likely. The fact that the boat is traveling through international waters does not affect the analysis. o 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 government. This exception is also known as entanglement. EXAMPLE: A privately-owned restaurant rents space in a government building. The government planned for commercial renters, built the restaurant décor, paid for its upkeep, and gave it some tax breaks. In this case, the restaurant was prohibited from discriminating against racial minorities because it was found to be working sufficiently close with the government to be considered a state actor, i.e. entanglement. EXAMPLE: The Supreme Court found state action because of the entanglement between a state and a private organization that regulates athletic competitions in public schools. EXAMPLE: State action was not found where the government granted a liquor license to a private club that racially discriminated, or where the government granted a charter to a corporation.

Delegation of Power

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

Tax Deductions for Religious Institutions

o General rule: The Supreme Court has upheld the validity of a property tax exemption for religious institutions, if treated the same as other non-profits. o A tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the Establishment Clause as an endorsement of religion. · Providing Public Services through Religious Institutions o If the government has a sex education program where it gives funding to both secular and religious organizations to carry out the program, it is constitutional.

Religious Activities Conducted at Public Schools

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

Executive Privilege

§ Absolute Privilege: The President has an absolute privilege to refuse to disclose information related to national security. § Presumptively Privileged: 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 criminal trial. EXAMPLE: The federal court subpoenaed tapes of Nixon and his advisors and the Supreme Court said this was permissible bc it was for a criminal trial and not related to national security. · Commander-in-Chief: The President is Commander-in-Chief of the military. o 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.

Presidential Limits on Congress

· Veto: Every act of Congress must be approved and signed by the President before it can become law; but if the president vetoes the bill, it can become law if passed by a two-thirds vote of each house. · Pardon Power: Can pardon anyone convicted under federal law. 5. 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.

case and controversey 4

o Abstention: A federal court may abstain or refuse to hear a particular case when the case includes undecided issues of state law. The abstention doctrine permits a federal court to defer to a state court to resolve issues of state law. If resolved via state law, the constitutional issues disappear. Thus, proper deference is paid to the state court system and harmonious federal-state relations are furthered. Abstention occurs in two ways: § The federal court may abstain if the meaning of a state law or regulation is unclear. In this situation, the state court might interpret the statute so as to avoid the constitutional issue. § Where a state court proceeding is going on, the federal court will abstain from hearing the same matter.

intermediate scrutiny 3

o Affirmative Action - Gender § Gender based affirmative action need only pass intermediate scrutiny. EXAMPLE: Social Security statutes and tax exemptions that entitle women to greater benefits were upheld. EXAMPLE: A U.S. navy discharge procedure that required male officers twice denied promotion to be automatically discharged, but not female officers, was upheld because in the past, men had been afforded greater promotional opportunities than women. § General rule: 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.

Special Case Rule for the U.S. Supreme Court

§ Adequate and Independent State Grounds: Although a state court decision may involve a federal question, if the state court judgment can be supported on an adequate and independent state ground, the Supreme Court will not take jurisdiction. To do so would be tantamount to rendering an "advisory opinion." § Applies only to the Supreme Court. EXAMPLE: A party to a contract breaches one provision of the contract. The matter goes up through the state system, and the state court rules that the entire contract is nullified because the breached provision was not severable as a matter of state law and because it is in violation of the federal antitrust laws. The court has ruled on one state law ground and one federal law ground. The Supreme Court cannot hear this case because the state law ground is adequate to support the decision. EXAM TIP: A state law ground 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 federal law. § Exception: If the state court says, in interpreting the state constitution, it was merely copying the federal constitution, then no clear, independent state ground exists; so the doctrine will not apply and the Supreme Court will hear the case.

fundamental rights 2

§ Contraceptives § Marriage § Family Relations · The government 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. § Private Education · Parents have a right to privately educate their children outside the public school system. § 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. § Right to Travel · 14th Amendment 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.

standing exceptions

§ Exceptions to the Standing Rules: · Third-Parties: A litigant lacks standing to assert the rights of third parties not before the court, except under the following conditions: § Special Relationship Exception: The Supreme Court has permitted a plaintiff to raise the constitutional rights of a third party where: · The plaintiff has suffered injury; · A special relationship exists between the plaintiff and third party because of the connection between the interests of the plaintiff and the constitutional rights of the third party; and · The third party is unable or finds it difficult to bring suit on his or her own behalf. § Organization/Member Exception: An organization has standing to assert the claims of its members, even if the association has not suffered any injury itself, if: · The members would have standing to sue in their own right; · The interest asserted is germane to the association's purpose; and · Neither the claim asserted nor the relief requested would require the individual members to participate in the lawsuit.

No Fundamental Right, but the Court has created some nuance

§ 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 applied a rational basis review, but because the state lost, which is virtually unheard of, the court seemed to apply rational basis with "teeth."

SEXUAL ORIENTATION

A bar exam question directly exploring this specific issue is not particularly likely at this time. But, should such a question arise in the meantime, the default rule, given these circumstances, is that a court should apply rational basis "with teeth" review. Now, despite this uncertainty, the leading cases in this area do provide some definitive rules that should be applied on the bar exam. · In Lawrence v Texas, the majority opinion deemed the legislative purpose of laws criminalizing same-sex intimate acts served no legitimate government purpose and were unconstitutional as a result. · In United States v Windsor, the Court held that DOMA's definitional provision for "marriage" and "spouse" lacked a constitutionally legitimate purpose insofar as it was motivated solely by animus towards a particular group, in violation of the Constitution's due process guarantees. · In Obergefell v Hodges, the Court held that equal protection, as well as substantive due process guarantees, protect the fundamental right to marry, and that states can no longer deny this right to same-sex couples.

bar question 2

A study conducted by a Washington "think tank," revealed that voter registration of Hispanic citizens has not kept pace with the increase in the Hispanic population. In fact, voter registration of such citizens shows an 11% decline over the previous decade, whereas the Hispanic population increase over the same period should have resulted in a 38% increase. The study also found that some Hispanic citizens who failed to register to vote gave as a reason the belief that registration was a complicated process that they were unable to understand, and that it required time away from work that they could not afford to take. In response to the study, Congress enacted a law permitting voter registration by mail, with all mailings to provide instructions in five languages, including Spanish. Congressional authority to enact such legislation derives from: A) The congressional power to regulate for the general welfare. B) The Enabling Clause of the 13th Amendment. C) The Enabling Clause of the 14th Amendment. D) The Enabling Clause of the 15th Amendment. © is the best answer. The 14th Amendment says that states cannot deny equal protection of its laws. Here, it appears that current state law regarding voter registration had an unequal impact on a particular population.

bar question 3

Congress, by a unanimous vote, declared war on the Republic of Freedonia. The Secretary of the United States Navy informed the President of the United States that dolphins could be used as minesweepers along the Freedonian coastline. The President issued an executive order that provided for the seizure of all dolphins from American aquariums. The executive order did not expressly provide for compensation to the aquariums. Congress had previously enacted various marine mammal abuse laws which prohibit any person from knowingly placing captive dolphins at substantial risk of harm. After the President's executive order, Congress considered, but failed to pass, a bill countermanding the order. The American Aquarium Association, on behalf of all American aquariums, and the Flipper Fund, an advocacy group interested in dolphin safety, filed suit in Federal District Court to enjoin the seizure of the dolphins. Assuming the plaintiffs have standing, how should the court rule? A) The executive order is constitutional because the seizure does not discriminate between publicly and privately owned aquariums. B) The executive order is constitutional because the President of the United States, as Commander-in-Chief, has the power to seize private property during wartime. C) The executive order constitutes an unconstitutional taking because the executive order did not provide for compensation for the aquariums. D) The executive order is unconstitutional because it conflicts with the marine mammal abuse law enacted by Congress. (D) is the best answer. The existing legal framework states that the President cannot act. Recall that executive orders do not prevail over federal law.

DUE PROCESS AND INCORPORATION OF PORTIONS OF THE BILL OF RIGHTS

EXAM TIP: Multiple-choice questions on this topic will present themselves in two different forms. The first asks what is the best source for an argument that a particular law is unconstitutional. For this, ask whether the constitutional provision protects from the states or from the federal government. The second type of question asks whether a law is constitutional. For this, look to the actual content of the individual rights. 1. Which Constitutional Provision Should Be Relied On? · The Bill of Rights can be invoked against the federal government (the first 10 amendments). o If the federal government is discriminating, the Due Process Clause of the 5th Amendment should be invoked. · The Bill of Rights can be invoked against the states using the 14th Amendment Due Process Clause. o There are provisions of the Bill of Rights that cannot be asserted via the 14th Amendment Due Process Clause: § 5th Amendment - right to indictment by grand jury; and § 7th Amendment - right to a jury trial in civil cases. o For discrimination by state governments, usually the Equal Protection Clause of the 14th Amendment will apply unless: § the state is discriminating against out-of-state business interests or corporations. For that, the Due Process Clause (Dormant Commerce Clause) might apply; or § the state is discriminating against citizens who have moved from another state. For that, the Privileges or Immunities Clause of the 14th Amendment applies.

Immunity of State Governments 2

EXAMPLE: Congress enacts a law regulating the purchase of guns by requiring people who do so to consent to a background check. Congress orders state law officials to enforce the law. This law is unconstitutional. EXAMPLE: Congress enacts a law that requires state legislatures to enact programs to dispose of nuclear waste. This is unconstitutional because Congress is ordering state legislatures to legislate. EXAMPLE: Congress enacts a law that prohibits race discrimination in employment. This law applies generally to individuals and doesn't require the state legislature to enact or refrain from enacting legislation. It is constitutional because Congress has enumerated powers to legislate in this area under the 13th and 14th Amendments. EXAMPLE: Congress enacts an anti-gambling statute prohibiting states from repealing their anti-gambling laws. This law is unconstitutional because Congress can neither force nor prohibit state legislatures from acting.

11th amendment 2

EXAMPLE: Suppose that Congress enacts a law that says that citizens can sue a state for money damages for torts committed by state officials. Congress has no power to enact this law for three reasons: · This cause of action is not created pursuant to Enforcement Powers of the 13th, 14th, or 15th A. · A Tort is not an issue of constitutional violation by a state. · This cause of action is blocked by state sovereign immunity and the 11th A. EXAMPLE: Suppose Congress enacts a law that says private parties can sue states for money damages for racial discrimination. This Congressional action is permitted for two reasons: · The enforcement powers permit Congress to create a private party action for monetary damages when it involves state behavior regulated by the three post-civil war amendments. · Racial discrimination is forbidden by the 14th Amendment and Congress has the power to enforce this Amendment. · It is an exception to the 11th Amendment state sovereignty. 3. Even if one of the above types of jurisdiction exists, a federal court must review other requirements before it can hear a case. These requirements come from Article III, Section 2, which limits the jurisdiction of federal courts to "cases" and "controversies." We call these the justiciability questions.

taxing power 2

EXAMPLES: § Congress can give money to political candidates and state that, in return, they must abide by certain expenditure limits. The Supreme Court sustained this as spending for the general welfare because it would reduce the harmful effect of candidates' reliance on large private contributions [Buckley v. Valeo, 424 U.S. 1 (1976)]. § Congress can spend money to build highways. It can even spend money to build a single bridge in a single state. This is because transportation promotes the general welfare. § Congress may not spend money to build a vacation home for the Senate majority leader. It would take this sort of self-dealing and corruption to fall outside of the general welfare. o 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. EXAMPLE: Congress cannot use its commerce power to regulate public schools. However, it can use its spending power to offer money to the public school systems if they agree to implement standardized testing. o Congress may place a condition on the receipt of federal funds by a state if: § The spending serves the general welfare; § The condition is unambiguous; § The condition is related to the federal program (relatedness); § The state is not required to undertake unconstitutional action; and § The amount in question is not so much that the state is "coerced" into accepting the funds.

standing hypo

HYPOTHETICAL: The members of the National Political Book Club (NPBC) purchase books of their choosing relating to controversial political issues at a discount price from NPBC. The Department of Homeland Security has demanded that the NPBC turn over its sales records, including which books have been purchased by each member. NPBC sues to prevent the release of information, claiming free association of its members. Will the club have standing? Go through the three-prong test. The members will have standing to sue in their own right since their privacy will be compromised if the government obtains a list of these books. Membership in this club will be discouraged if members cannot maintain the privacy of the books. Thus, the club's purpose is aligned with the member's rights that they are attempting to assert. Finally, is there a need for participation of the members in their individual capacity? No. Therefore, the book club does have standing.

RETROACTIVE LEGISLATION

The Contract Clause · "No state shall...pass any...Law impairing the Obligation of Contracts" [Article I, Section 10]. o The Contract Clause applies only to state legislation, and not to state court decisions or to the federal government. o When determining whether a contract may be modified, courts will consider: § The severity of the impairment; and § The importance of the public interest to be served. EXAMPLE: A state law imposing a moratorium on mortgage foreclosures during the depression was upheld. EXAMPLE: A state attempted to use transit authority funds to subsidize public transportation in violation of a previous statutory covenant to private bondholders. This was held unconstitutional. EXAMPLE: The Court invalidated state pension reform legislation, which increased the obligation of companies under preexisting pension plans.

11th amendment

The Eleventh Amendment provides state sovereign immunity: · Private individuals cannot sue states for money damages in any court (key word is money damages). o Exceptions: § Federal suits brought by one state against another state; § Suits brought by the federal government against a state; § Subdivisions of a state (e.g., cities, towns, and counties) do not have immunity; § A private citizen may sue a state requesting an injunction; EXAMPLE: A suit to enjoin a state official from acting in violation of the plaintiff's federal constitutional rights. § A state may consent to suit in federal court if it clearly waives its 11th Amendment immunity. · The state must do so expressly and unequivocally; or · 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. EXAM TIP: When an 11th A. question comes up, be sure to carefully read the choices for money damages versus other types of remedies. If money damages and private individuals are involved, the lawsuit will not be permitted unless it involves the 13th, 14th, or 15th Amendments.

Executive Power

VAPER veto power, appointment, pardon, enforcement, removal · Chief Executive: The President is the chief executive and has the following powers: o Enforcement of Laws - President can enforce but not create laws. o Appointment Power § The President 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: · the President; · the judiciary; or · the head of an executive department. o 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 Federal Trade Commission). § Federal judges: The President cannot remove judges, even for cause. The only way a federal 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.

commerce power

o Congress can regulate: § Channels of interstate commerce (i.e., highways, waterways, and air traffic); § Instrumentalities of interstate commerce (i.e., cars, trucks, ships, airplanes); and EXAMPLE: Congress can enact a law prohibiting interstate shipment of goods made with child labor. Congress is trying to discourage child labor, an interstate activity. It does not matter that the purpose is not commerce related. § Activities that "substantially affect" interstate commerce. · 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. EXAMPLE: Congress can use the commerce power to protect the right of workers to form unions. Although this seems purely intrastate, the flow of goods and people across state lines is affected by labor disputes. · 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. EXAMPLE: The federal commerce power permits regulation of the amount of wheat an individual farmer can grow on his own land, for his own consumption, because his activity, together with that of all the other growers of wheat for their own consumption, have a substantial cumulative effect upon interstate commerce.

powers of congress 2

o Congress gets its power to legislate from three sources or legal theories using the mnemonic "PEN" and Congress writes the laws: § Enumerated Powers = To collect taxes and spend money for the general welfare, to borrow money on the credit of the United States, regulate commerce, declare war, and to raise and support the army, navy, and militia. (It's all about power and money = P) § Enabling clauses of the 13th, 14th, and 15th Amendments give Congress the power to enforce those amendments by "appropriate legislation." (Enabling = E) § 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. (What is necessary to get stuff done = N) EXAMPLE: Congress passes a law creating a national bank. The Constitution does not expressly give Congress this right. However, the Supreme Court reasons that a national bank will help Congress pay debts, collect taxes, spend money, and regulate commerce. Thus, the clause is justified in conjunction with other enumerated powers. EXAM TIP: The Necessary and Proper Clause as an answer by itself will usually be incorrect. If it's the Necessary and Proper Clause in conjunction with another power, it is more likely to be a right answer.

Civil War Amendments

o Congress has the power to enforce: § The 13th Amendment, which bans slavery; § The 14th Amendment, which prohibits states from violating due process, equal protection, and privileges and immunities; and § The 15th Amendment, which prohibits states from discriminating with respect to race in voting rights. o To enforce these amendments: § With respect to the 14th and 15th Amendments, Congress can only regulate states, not private individuals; § With respect to state governments, such governments must have engaged in widespread violations of the Amendment; and § The legislative remedy must be "congruent and proportional to" the violations. EXAMPLE: Congress tells states to provide equal unpaid leave for male and female workers to care for family members. The 14th Amendment prohibits discrimination on the basis of sex unless it is substantially related to an important government interest. The Supreme Court held this law constitutional. o If Congress passed valid legislation to enforce the 14th or 15th Amendment legislation, recall that sovereign immunity under the 11th Amendment will not apply.

Taxing Power

o 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: § It raises revenue (objective test); § It was intended to raise revenue even if it doesn't (subjective test); or § Congress has the power to regulate the activity that's being taxed (regulatory test). EXAMPLE: The Supreme Court sustained a tax on coal producers who violated a fair competition law, even though it was clearly designed to be a penalty rather than raise revenue [Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940)], bc it DID raise revenue. · Spending Power o Article I, Section 8, Clause 1, provides Congress with the power to spend for the general welfare. EXAM TIP: Do not say that something is unconstitutional because it is not for the general welfare.

War and Defense Powers

o Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline, and call forth a militia. o During wartime, Congress has the power to: § Activate the military draft and selective service; § Initiate wage, price, and rent control of the civilian economy; and § Exclude civilians from certain restricted areas. o Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants. EXAM TIP: A question might ask what rights a terrorist has with respect to detention. Both U.S. citizens and non-U.S. citizens within the United States (or U.S. territories) are entitled to Due Process rights. · Immigration and Naturalization · Investigatory Power o Congress has broad investigatory powers that may extend to any matter within its legitimate lawmaking functions. o 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. · Property Power o Congress has the power to regulate or dispose of federal property. EXAM TIP: If dealing with a federal territory and not a state, Congress has a general legislative power and can pass any law it would like.

Other Government Endorsement of Religion

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

substantive due process 2

o Economic Regulations § A substantive due process challenge directed at an economic regulation is subject only to rational basis review. · Under such a review, the burden is on the plaintiff to show either: (1) that the government interest being served is not legitimate, or (2) if the government's interest is legitimate, that the legislation is nevertheless not rationally related to promoting it. · In either case, the plaintiff's burden is difficult to meet and the government action will likely survive review. o Both over-inclusive and under-inclusive laws will satisfy rational basis review. o Fundamental Rights § A substantive due process challenge directed at government action that impinges on a right deemed "fundamental" is subject to the highest level of scrutiny: strict scrutiny. · Under such a review, the burden is on the government to show both: (1) that the government interest being served is of a compelling nature, and (2) that its legislation is narrowly tailored to achieve that interest. · The government's burden is difficult to meet and the government action is not likely to survive review. o Both over-inclusive and under-inclusive laws will likely fail strict scrutiny review.

intermediate scrutiny 2

o Gender Discrimination: Laws that treat men and women differently must meet intermediate scrutiny. § Examples of unconstitutional laws: · A state law giving preference to men over equally qualified women to be administrators of decedents' estates. · 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. · Authorizing alimony payments to women but not to men. · Higher drinking age for men than for women. § Example of constitutional laws: · 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 government interests. · 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. EXAM TIP: If a question involves discrimination that is motivated or reinforced by traditional stereotypes about appropriate gender roles, it will most likely be unconstitutional.

Intermediate Scrutiny

o Illegitimacy: Laws that treat people differently based on whether their parents were married. EXAMPLE: State laws that deny welfare benefits to illegitimate children are unconstitutional. EXAMPLE: State laws that deny illegitimate children from sharing equally with other children in workers' compensation death benefits are unconstitutional. EXAM TIP: If there is a question with discrimination based on illegitimacy on the bar exam, it will probably be unconstitutional. This sort of discrimination serves no important governmental interest. HYPOTHETICAL: After Alan's death, both Lucia and Ivan claimed the right to take under Alan's will, which merely said that his 5,000 shares in IBM will be left to "his children then alive." Lucia claims Ivan cannot take because of a state statute requiring illegitimate children to prove paternity before the parent's death or otherwise not take at all. Ivan claims his father had an affair with his mother. What analysis will the court take? Discrimination on the basis of illegitimacy gets intermediate scrutiny. There is an important state interest in knowing who the children are in order to divide up the estate. The only way to know whether an individual is someone's biological child is by proving it. This statute passes intermediate scrutiny.

case and controversey 3

o Political Questions: Federal courts cannot hear cases involving political questions. A political question is a matter that the Constitution assigned to another branch of government or that is incapable of a judicial answer. The Supreme Court set forth factors to determine if the political question doctrine applies. § Two most important factors: · Something in the Constitution suggests that ultimate decision-making authority is given to another governmental actor; and EXAMPLE: The Constitution says the Senate shall have the sole power to try impeachments. This is not a matter for the courts. · The required decision is political rather than legal in character. EXAMPLE: The court states it will not review the way a state draws its electoral districts where the plaintiff argues they were drawn in a manner to favor one political party over another. The Supreme Court has determined that the issue is not legal but rather a political question. EXAMPLE: If the plaintiff argues that the electoral districts were drawn in a manner to favor a particular race, the court can hear the case because the basis of the issue is legal, not political. EXAM TIP: Foreign affairs is a frequently tested political question topic.

Government Aid to Religious Schools

o Providing bus fare for both public and private (including some religious) schools has been found to be constitutional. o States can provide money to both public and private schools for: § Secular textbooks; § Standardized secular exams; § School lunches; § Library media materials and computers; and § Interpreters for deaf students. o States cannot give money: § To be used directly for religious instruction; or § 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. o 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. o 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. NOTE: 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.

case and controversey 2

o Ripeness: Bars consideration of claims before the claim's issue has fully developed. The controversy must be ripe for decision because otherwise the federal courts will decide constitutional issues before it is necessary to do so. o Mootness: If a controversy or matter has been resolved, then the case will be dismissed as moot. There is no longer a controversy for the court to resolve. § Exception (use the mnemonic CRYER): The case will not be dismissed for mootness if the injury is "Capable of Repetition, Yet Evading Review." Meaning that it is a practical impossibility for the case to be fully heard or go up on appellate review before the plaintiff's claims, or the claims of other individuals who are members of a class action become moot. (ex. Incarcerated person asserts 8th amendment claim then gets out of prison. Moot bc that person is no longer experiencing the 8th amendment violation, but other incarcerated people could possibly benefit from suit, so exception applies) EXAM TIP: If the correct answer is "ripeness" or "mootness," then the question will most likely deal with a lawsuit remedy requesting declaratory judgment.

standards of review 2

o Standard of Review: The burden is on the plaintiff to show that the measure being challenged is not rationally related to any legitimate governmental interest (plaintiff will almost always lose). o Two Exceptions: § If the purpose of the measure being challenged was intended to have a racially disproportionate effect, then it is intentional discrimination and will face strict scrutiny. § If a neutral standard is being applied in a discriminatory way, it will face strict scrutiny. o Rational basis review applies to all classifications not falling under strict or intermediate scrutiny, such as classifications based on age, disability, and alienage if done by Congress. o The government generally prevails when rational basis review is applied. § Exception: Recent cases have held classifications based on sexual orientation that appear to discriminate based on that classification are unconstitutional because the legislation lacked a legitimate government purpose. In each case, the legislation failed to even pass the low-level scrutiny of rational basis review. Remember, that the court seems to apply rational basis review "with teeth" to sexual orientation cases. · Intermediate scrutiny o Rule: The government must show that the measure being challenged is substantially related to an important governmental interest. o Applies to government discrimination regarding gender and illegitimacy (quasi-suspect classification). · Strict scrutiny o Rule: The government must prove that the measure being challenged serves a compelling government interest, and it is necessary to further that interest. § The government usually fails to prove its burden under strict scrutiny. § Discriminated group is suspect classification

takings 2

o 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 property interest and the term of years of restriction. o Conditional permits: A condition on the grant of a permit for land development. § Permissible if: · there is a logical nexus between the condition and the governmental purposes; and · there is rough proportionality between the impact on the proposed development and the governmental objectives served by the condition. HYPOTHETICAL: Alpha Airways announced it would locate its new maintenance hangar and machine shop at the far corner of the Quint County Airport, bringing nearly a thousand jobs to the region. The Airport authority soon announced it would use neighboring land to build an access road to the facility and would need to use some adjoining non-airport land to erect the construction crane, ensuring that the runway would not be obstructed during construction. The property owners sued for injunctive relief. How should the court rule? This is within the broad scope of public purpose.

International Affairs

o 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 federal law. § Treaties and Federal law: Treaties have the same status as federal law and will override earlier federal law if ratified by the Senate. A new federal law enacted after the treaty will override that treaty. § Treaties and State law: Treaties take precedence over any conflicting state law (regardless of whether the treaty precedes or follows the enactment of the state law). o 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. § Federal statutes: Executive agreements do not prevail over federal law. § State law: Executive agreements prevail over inconsistent state law. EXAMPLE: The President can use an executive agreement to settle claims U.S. citizens have against a foreign country.

executive power 2

o Veto Power § Veto Process: 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 (takes no action and thus it is vetoed). § Congressional Override: 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 federal legislation. The President has to either accept a bill or veto it as a whole. EXAM TIP: Bicameralism and presentment are the only ways in which a bill can become a law. Both the House and Senate vote on, and then pass the bill. It is then presented to the President to sign it into law. o Pardon Power § The President may grant pardons. § Limitations: · President can only issue pardons for federal 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. HYPOTHETICAL: As one of his last acts in office, President Bartlett absolves all the officials in his administration of their perjury charges arising from an FBI investigation, and all his major campaign donors of their SEC infractions; and, in a gesture to his firm belief against capital punishment, he pardons every death row inmate in the United States. Are these pardons proper? The first two pardons are acceptable. However, the President can only issue a pardon for death row inmates that have been convicted of federal crimes (this will not be the case fo

fundamental rights 3

§ Right to Vote · Generally, the right to vote comes from the 1st Amendment Right of Association and the 14th Amendment. However, there are more specific amendments regarding the right to vote: o 15th Amendment: States cannot discriminate with respect to race and right to vote. o 19th Amendment: States cannot discriminate with respect to sex and right to vote. o 24th Amendment: No poll taxes. o 26th Amendment: Right to vote for all citizens 18 years or older. · Level of Scrutiny: Not every form of government regulation receives strict scrutiny. Some voting restrictions are constitutional, while others are not. · Restrictions that are constitutional: o Reasonable residency and voter registration requirements. o Reasonable regulation of time and manner of casting votes. o Denying felons the right to vote. · Restrictions that are unconstitutional (strict scrutiny applies): o Cannot impose poll tax. o Cannot require voters at school board elections to own property. o Cannot count votes using standards that lack uniformity or are too vague. · Presidential Elections: The President is not chosen by the overall popular vote. Instead, individual voters select electors as state representatives and they actually choose the President. Who can vote for state electors? Anyone who may vote for state legislature.

What process is due?

§ To deprive someone of life, liberty, or property, the government must give: · Notice; and · Hearing. § Factors to determine adequate notice and hearing: · The importance of the individual interest protected; · The risk of an erroneous deprivation of this interest through the procedures used; and · The government's interest in streamlined procedures. · Substantive Due Process o This is a doctrine whereby substantive rights not specifically referenced by the Constitution's text are protected. o Such rights are said to be "implicit in the concept of ordered liberty" or are "deeply rooted" in our history and tradition. o Rational Basis Review versus Strict Scrutiny § At a minimum, substantive due process requires that all legislation be rationally related to some legitimate government purpose (rational basis review). § However, when a court deems that the substantive right asserted by the plaintiff is one that is "fundamental," then the court will apply strict scrutiny and require that the legislation be narrowly tailored to achieve a compelling government interest.

Immunity of State Governments

· 11th Amendment: Recall that Congress cannot create a private cause of action for money damages against a state unless it is using its enforcement powers under the post-Civil War 13th, 14th, and 15th Amendments. However, individuals may seek injunctive relief. · A state is immune from federal taxation if the tax is applied to unique state activities or essential governmental functions. · Anti-Commandeering Doctrine: The federal government can't force states to act in their sovereign capacities (i.e., legislate or enforce laws). EXAM TIP: The 10th Amendment is frequently a "red herring" wrong answer choice, except when the facts show the federal government "commanding" the states. EXAM TIP: It does not matter if a state is happy to obey the federal government regarding legislation or enforcement of a law. It is still unconstitutional. The Spending Clause can often be used instead to achieve the same result.

State Action versus Private Action

· 13th Amendment: Does not have a state action requirement. It applies to private individuals. · State-Action Requirement: The plaintiff must show that there is governmental action. Constitutional rights can be violated only by governmental actors, not by private actors with the exception of the 13th Amendment and the specific situations below. · Two Exceptions: o Public-Function Theory: Where a private entity is carrying on activities traditionally performed by the government. This theory is also known as entwinement. EXAMPLE: A private company owned an entire town. A member of the Jehovah's Witnesses was arrested and convicted of violating a state trespass law that made it a crime "to enter or remain on the premises of another." The Supreme Court reversed the trespass conviction because the town's streets, although privately owned, were the functional equivalent of city streets. The Supreme Court held that the company's actions were in violation of the 1st and 14th Amendments because neither a state nor a private owner can totally ban the expression of free speech. EXAMPLE: The Supreme Court ruled that the "company town" rationale did not apply to a privately owned shopping center (bc doesn't provide same type of municipal services a city would).EXAM TIP: Multiple-choice questions on this topic will present themselves in two different forms. The first asks what is the best source for an argument that a particular law is unconstitutional. For this, ask whether the constitutional provision protects from the states or from the federal government. The second type of question asks whether a law is constitutional. For this, look to the actual content of the individual rights.

case or controversy

· Case or Controversy: EXAM TIP: Use the mnemonic RAMPS (to get into federal court, one must go up the RAMPS)- ripeness, abstention, mootness, political question, standing o Standing: Article III requires a person to show: § Injury in Fact to the person bringing the law suit; · Plaintiff must show a direct and personal injury, actual or imminent, caused by the action that he or she is challenging. Where the plaintiff has not suffered any personal injury or harm, the plaintiff does not have standing. · Examples of individuals who lack standing: o Legislator who doesn't like legislation passed. o Private individual who merely believes law is unconstitutional. o Tax-payer who does not want tax dollars used to enforce a law he or she believes is unconstitutional. § Exception: A taxpayer can challenge a law believed to violate the Establishment Clause of the 1st Amendment. § Causation: Injury was caused by the challenged action; and § Redressability: Plaintiff must show that they will benefit from the remedy sought in the litigation and that the court can provide that remedy.

Authority Reserved for the States

· Dormant Commerce Clause: States cannot discriminate against out-of-state economic actors. o If a state law discriminates on its face against out-of-state goods or economic actors, the state must show: § The regulation serves a compelling interest; and § The regulation is necessary to achieve the compelling interest. EXAMPLE: Maine bans importation of out-of-state bait fish to preserve Maine fisheries from the parasites in the bait fish. This passes the strict test above. o Rule: State laws that regulate interstate commerce even-handedly to effectuate a legitimate local public interest (but incidentally burdens interstate commerce) will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.EXAMPLE: A Detroit smoke abatement ordinance that applies to ships traveling in interstate commerce was upheld as a valid health measure (applies to in- and out- of state actors, applies to valid health measure, not overly burdensome). EXAMPLE: A state law limiting the length of trucks traveling on state highways or trains rolling through the state is unconstitutional because the regulation unduly burdened interstate commerce, and the state failed to demonstrate any significant safety benefit. o Exceptions: § Congress may affirmatively authorize states to legislate in areas that would violate the Dormant Commerce Clause. § When states act as market participants, they may discriminate between in-state and out-of-state businesses. EXAMPLE: New York State enacts legislation saying the police department must buy uniforms from in-state suppliers. This law discriminates on its face; however, this is a market-participant exception. o The Dormant Commerce Clause applies to state taxes.

Nature and Scope of Federal and State Powers

· Federal Government: Has the powers granted by the Constitution and no others. · The States: Have police power. They can pass laws without identifying a source of power for doing so. However, there are constitutional limitations on state police powers: o Exclusive Federal Power: Reserves certain enumerated powers exclusively for the federal government; o Individual Rights: Restricts the state governments from acting in violation of constitutional provisions; and o Preemption: Under the Supremacy Clause, if Congress enacts legislation with the intention of preempting state law, the congressional regulation will control. 2. Immunity of Federal Government · Sovereign immunity: The federal government cannot be sued without its consent. · Supremacy Clause: Federal law is supreme over state law. · Taxation of Federal Government by a State: The federal government and its agencies and instrumentalities are immune from state taxation and regulation that would interfere with their performance of federal functions.

Congressional Limits on the Executive

· General Rule: If Congress is acting within its constitutional powers, Congress may block the President from acting. EXAMPLE: There is a threat of strike at steel mills during wartime and the President decides to seize these mills despite federal laws stating he cannot do so. Courts have found this to be unconstitutional. EXAMPLE: The President sets up military courts on his own in order to try suspected terrorists, ignoring valid federal law established by Congress. Again, this is unconstitutional and Congress wins. The President could have asked for authority from Congress to set up these military courts, and that would have been okay. · Impeachment Power o Congress can remove the President, federal judges, and any federal official from office. o The House has the sole power to impeach (essentially an indictment). o The Senate has the sole power to try impeachments. A two-thirds vote in the Senate is required for conviction. o Impeachment by itself does not carry any penalty beyond removal from office. o Impeachable offenses: treason, bribery, and other high crimes and misdemeanors. · Appropriations Power o 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. EXAMPLE: If Congress does not want any Guantanamo prisoner transferred to the U.S., then it can say no federal funds may be used to transport prisoners to the U.S. This will prevent the President from doing otherwise.

Powers of Congress

· Legislative Power o For a federal 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. EXAMPLE: Let's the use the visual of a pyramid of beer cups. The first question is whether Congress has the right to even build that pyramid. The second question is, even if Congress has the right to build the pyramid, i.e. create the law, does the law violate the Constitution? If so, the pyramid of beer cups gets smashed down, i.e. the law is struck down as unconstitutional. o For a state law to be constitutional: the law must not violate a constitutional right. EXAM TIP: Watch out for an answer that says Congress had the power to enact the law under its federal 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. o Procedurally, 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.

commerce power 2

· Limitations: § Cannot use the power to regulate intrastate non-economic activity. EXAMPLE: Possession of a handgun is not an economic activity. EXAMPLE: Violent crime is not an economic activity. EXAMPLE: Loansharking is considered an economic activity. EXAMPLE: Congress's plenary commerce power is not without limits. In U.S. v. Lopez [514 U.S. 549 (1995)], for the first time in more than half a century, the Supreme Court struck down a federal law that made it a crime for any individual knowingly to possess a firearm in a school zone. Since gun possession near schools is neither itself an "economic" activity nor an activity that "substantially" affects interstate commerce, and since no "jurisdictional element" connecting particular gun possession to interstate commerce was expressed in the language of the statute, the Supreme Court held that Congress was acting beyond the limits of the Commerce Clause. § Exception: Regulating intrastate non-economic activity with a "comprehensive scheme." § The commerce power cannot overcome state sovereign immunity—i.e. the Commerce Clause does not overcome the 11th A. For example, Congress cannot use the commerce power to create a private cause of action for money damages against a state. However, it can bar racial discrimination by private parties in activities connected with interstate commerce, (Atlanta Hotel case) but it cannot use the Commerce Clause as the basis for barring racial discrimination by a state and allow private parties to sue to enforce that law by seeking money damages. But recall, Congress can use the post-Civil War enabling powers of the 13th, 14th, or 15th Amendments to achieve such a law.

Jurisdiction of the Supreme Court

· Original jurisdiction over cases involving ambassadors, foreign diplomats, and states. · Congress cannot enlarge or restrict the Supreme Court's original jurisdiction. · Appellate jurisdiction exists where the Constitution or a federal law is at issue. 5. Congress's power over the courts · Lower courts: Constitution grants Congress power to create courts inferior to the Supreme Court and prescribe their powers (i.e., change jurisdiction, eliminate, or create courts). · Supreme Court: Unsettled how much power Congress has over the Supreme Court. · Congress cannot take a case from appellate jurisdiction and move it to original jurisdiction (Marbury v. Madison). BAR EXAM APPLICATION Question 1 The legislature of State Blue enacted a statute prohibiting "any artificially amplified public address within 500 feet of the capitol building while the state legislature or any of its committees is actually conducting business therein." Which of the following plaintiffs would be most likely to have standing to attack in federal court the constitutionality of the statute prohibiting amplified public addresses near the capitol building? A) A state legislator who voted against the statute because she believed it to be unconstitutional. B) A candidate for election to the state legislature who intended to address a gathering of his supporters at a park across from, and within 500 feet of, the capitol building on the following Tuesday at the same time that the legislature was conducting business inside. C) A state taxpayer. D) A representative of an organization formed to "seek judicial declarations that laws unconstitutionally infringing freedom of speech are void." The best answer is (B) because it involves someone with an actual imminent injury.

congress power

· Power of Eminent Domain o Congress has the power to take private property for public use (implied power, not expressly granted in the Constitution). · Admiralty and Maritime Power o The Supreme Court has determined that the Necessary and Proper Clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country. · Bankruptcy Power o Congress has the power to "establish uniform Laws on the subject of Bankruptcies throughout the United States." · Postal Power o May establish Post Offices and Post Roads. · Copyright and Patent Power o 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". · Speech and Debate Clause o Members of Congress cannot be punished or prosecuted for anything they say during debate on the floor in either house.

Privileges and Immunities under Article IV, Section 2

· Sometimes referred to as the Comity Clause, Article IV, Section 2 provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." · 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. o Invalid forms of non-resident discrimination: § State statutes that require non-residents to pay a higher fee for commercial licenses; § Commuter taxes that apply to non-residents, but not to residents; or § State laws requiring employers to give hiring preference to state residents. o Types of discrimination that have been upheld: § State statute requiring non-residents to pay higher fees for recreational licenses than residents. § When the purpose of discrimination is to preserve natural, state-owned resources. · Test: The state can discriminate if it is substantially related to a substantial state interest. · Corporations cannot assert these rights, as a corporation is not a citizen. A corporation can protect itself from such discrimination via the Dormant Commerce Clause. HYPOTHETICAL: Josh and Brian, a couple living in New Jersey but employed in New York, have filed suit over a commuter tax charged on non-New York state residents when they travel into New York City. New York claims residents pay through a state income tax not imposed on out-of-state residents. Will their suit be successful? The suit will be successful. The state is imposing a burden on out-of-state residents for crossing state lines.

Suspect Classifications

· Strict Scrutiny: Applies to classifications based on race, alienage, and national origin. Such laws will be presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest. o Racial discrimination § State laws prohibiting interracial marriages or interracial cohabitation are unconstitutional. They facially discriminate on the basis of race. § De jure segregation: Laws that deliberately segregate on the basis of race. · This will face strict scrutiny and almost always be found unconstitutional. § De facto segregation: Segregation in fact (or bc of social forces) but not by operation of law. · This isn't discrimination, as there's no state action. § 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. § Overt classifications may pass strict scrutiny, for example, where police are separating a crowd by race in the middle of a riot.

Due Process Clause

· The 5th and 14th Amendments offer two kinds of protection: o Procedural Due Process o Substantive Due Process · Procedural Due Process: Protects against governmental deprivation of "life, liberty, or property" without due process of law. o Who counts as a person? Who can assert rights? § Applies to all people (not just citizens) as well as corporations. o What counts as life, liberty, or property? § "Liberty" = (very broad) Includes freedom from bodily restraint and physical punishment. § "Property" = (narrower) If the state can take something away from a person for no reason at all, there is no property interest. There are generally property interests in the following: · Public education; · Public employment (if fixed-term employment or can be fired only for cause); · Welfare benefits; and · Driver's license. HYPOTHETICAL: Harold is a unionized custodian for the city's buildings department. In a cost-cutting move, the city decides to outsource maintenance and let Harold go. He sues, claiming a property interest in his job because of the "just cause" provision of his union contract. Will he be successful in his challenge? Yes, he has a property interest. He is not an at-will employee. What kind of process is he owed? The state must follow his contract so whatever dispute procedures the union has bargained for or are in his contract. § "Life" = If the state is trying to execute someone it must provide due process of law (capital punishment).

Fifth Amendment Takings Clause

· The federal government cannot take private property for public use without just compensation. This prohibition applies to the states as well through the Due Process Clause of the 14th Amendment. o "Public use" = "public purpose" (easy standard to meet). · Four kinds of takings: o Direct government appropriation: Where the government actually takes someone's property. o Regulatory taking: Where the government doesn't take property, but imposes a regulatory requirement that is so onerous as to effectively amount to a taking. § Categories to determine whether a regulatory requirement amounts to a taking: · The regulation requires the property owner to suffer some permanent physical invasion; EXAMPLE: A state law requires landlords to permit cable companies to install cable lines through apartment buildings. · The regulation deprives the property owner of all economically beneficial use to the property; or EXAMPLE: A state law was passed permitting only residential development on the property owner's land. This does not deprive the property owner of all economically beneficial use and is not a taking. EXAMPLE: A state disallows any development on land owned by an individual. This is a taking. · The government will balance the economic versus physical impact of the regulation on the property owner, as well as the duration and character of the government action. EXAMPLE: A 32-month moratorium on development in an area was not considered a taking (bc property owner gets their property back, just a pause).

Ex Post Facto Laws

· There are two ex post facto clauses in the Constitution that prevent both the state and federal governments from passing retroactive criminal laws. o Article I, Section 9, Clause 3 provides: "No...ex post facto Law shall be passed"; and o Article I, Section 10, Clause 1 provides: "No State shall pass any...ex post facto Law." · In general, a statute violates the ex post facto clause if it: o Makes criminal an act that was not a crime when committed; o Prescribes greater punishment for a crime after its commission; o Decreases the amount of evidence required for conviction; or o Extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Bills of Attainder

· Two provisions prevent both federal and state legislatures from passing bills of attainder: o Article I, Section 9, Clause 3 states: "No bill of attainder...shall be passed"; and o Article I, Section 10, Clause 1 provides: "No state shall pass any Bill 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. EXAMPLE: Congress passes a law making it a crime for a member of the Communist Party to act as an officer of a labor union. This is the equivalent of legislative punishment, and hence a bill of attainder. EXAMPLE: Congress passes a law stating that Nixon must turn over various presidential papers and tape recordings. This does not constitute a bill of attainder, because the act was non-punitive. · Ex post facto laws will not single out an individual or a group whereas bills of attainder do. Bills of attainder also will not involve a trial.