CON LAW

Free Exercise Clause

A person's religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious belief. The government 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. Rule: 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."

Overly Broad Regulation of Speech

A state regulation that sweeps both protected and unprotected speech within its operation is overly broad and invalid as a result of its effect to "chill" speech an individual would otherwise engage in, if not for fear of prosecution or other sanction

Privileges and Immunities Rule Statement

Article IV, provides that citizens of each state shall be entitled to all privileges and immunities of citizens in several states. Generally, under the Privileges and Immunities Clause, states are barred from discriminating against nonresidential citizens on fundamental matters, unless the regulation in question specifically targets a problem arising from such nonresident behavior. Further, corporations are not "citizens" for purposes of the Article IV Privileges and Immunities Clause. REMEMBER: you can sometimes come up with a fundamental right (ex. right to livlihood)

Supremacy Clause

Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits. The Supremacy Clause prohibits state or local governments from directly regulating or taxing the federal government without the federal government's consent.

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: - Exclusive Federal Power: Reserves certain enumerated powers exclusively for the federal government; - Individual Rights: Restricts the state governments 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.

Congressional Limits on the Executive

General Rule: If Congress is acting within its constitutional powers, Congress may block the President from acting

Public Employment

General rule: An individual cannot be denied public employment based upon membership in a political organization, unless the position is a high-level policy-making position An individual may be denied public employment based on political association if the individual: - is an active member of a subversive organization; - has knowledge of the illegal aims of the organization; and - has a specific intent to further those illegal aims.

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.

Establishment Clause

Rule (discriminatory legislation): Where a law prefers one religion or religious sect over others, strict scrutiny applies

13th Amendment

The Thirteenth Amendment to the United States Constitution applies to both state action and private action It prohibits slavery and involuntary servitude, except as punishment for crime. The phrase "involuntary servitude" can mean being compelled to work by the use of force, the threat of force, or the threat of legal coercion. NOTE: The United States Supreme Court has held that the nation's military draft does not violate the Thirteenth Amendment, but that laws regarding peonage (involuntary service to work off a debt) do violate this provision. - The Second Circuit has ruled that community service required to graduate from high school does not violate the Thirteenth Amendment.

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 "Public use" = "public purpose" (easy standard to meet).

Content-Based Speech Regulation

Where a statute regulates the content of communication, the burden is on the state to show that the statute is necessary to further a compelling state interest and that it is the least restrictive means of accomplishing that goal.

State Sovereign Immunity (11th Amendment)

Private individuals cannot sue states for money damages in any court (key word is money damages). 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; - A state may consent to suit in federal court if it clearly waives its 11th Amendment immunity (expressly and unequivocally; or Congress can authorize individual citizen private suits involving monetary damages to compensate for state violations 13A, 14A, 15A pursuant to its enforcement powers)

44 Liquormart v. Rhode Island (1996)

A Rhode Island statute prohibited all advertising of liquor prices, except for price tags displayed with the merchandise. The Supreme Court invalidated the law because regulations of commercial speech must be "narrowly tailored" and should be no more extensive than is necessary.

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. Abstention is the proper course when the federal issues may be avoided by a resolution of ambiguity in the state law by the state court

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.

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

Fundamental Right to End Life

Although there is no fundamental right to end one's life (such as by committing suicide), people have a fundamental "liberty" interest under the Fourteenth Amendment of the Constitution in not being forced to undergo unwanted medical procedures, including the medical provision of food or other forms of life support

Spending Power

Article I, Section 8, Clause 1, provides Congress with the power to spend for the general welfare 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 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

Article III requires a person to show: - Injury in Fact to the person bringing the law suit; - Causation: Injury was caused by the challenged action; and - Redressability: Plaintiff must show that they will benefit from the remedy sought in thelitigation and that the court can provide that remedy Don't forget there are two exceptions

Procedural Due Process

Procedural due process guarantees a fair decision-making process before the government takes some action directly impairing an individual's life, liberty, or property interests under the Fifth and Fourteenth Amendments. Where such a deprivation occurs that is serious in nature, the procedural safeguards of notice and opportunity to be heard (i.e., hearing) are available.

Commercial Speech Regulation

Commercial speech is "quasi-protected" speech In order to be constitutional, regulations of commercial speech, where the speech is not false or deceptive and does not relate to unlawful activity, must: (1) serve a substantial governmental interest; (2) directly advance the substantial governmental interest; and (3) not be more extensive than is necessary to serve that interest.

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. Limitation: Congress can delegate power so long as there is some "intelligible principle" that guides the agency

Commerce Power

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 - 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. 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 NOTE: Cannot use the power to regulate intrastate non-economic activity, except if it is an intrastate non-economic activity with a "comprehensive scheme"

Impeachment Power

Congress can remove the President, federal judges, and any federal 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.

Legislative Power

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)

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. NOTE: Congress's authority to conduct investigations only includes those areas or matters in which the Constitution allows it to legislate. There is no express constitutional power of Congress to investigate.

15th Amendment

Prohibits states from discriminating with respect to race in voting rights. Under the Fifteenth Amendment, Congress may pass appropriate legislation to enforce voting rights associated with racial discrimination. - Included in this power would be the right to pass legislation to preserve the integrity of voter registration.

Commercial Speech

Protected by the 1st Amendment if it is not false or deceptive and does not relate to unlawful activity. If commercial speech satisfies these requirements, government regulation of the speech must satisfy the three-part test: - Serve a substantial governmental interest; - Directly advance the substantial governmental interest; and - Not be more extensive than is necessary to serve that interest.

The Speech and Debate Clause

Provides that members of the U.S. Congress "shall not be questioned in any other place" for "any speech or debate in either house." Note: this issue could come up in a defamation question

EPC Standads of Review

Rational basis: the level of review in situations of disparate impact. Disparate impact, by itself, is not discrimination. 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. Intermediate scrutiny: The government must show that the measure being challenged is substantially related to an important governmental interest. Applies to government discrimination regarding gender and illegitimacy. Strict scrutiny: 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

Sexual Orientation Discrimination Review

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.

Equal Protection Clause of the Fourteenth Amendment

Rule Statement: The Equal Protection Clause of the Fourteenth Amendment guarantees that laws will be fair and equal, and it applies when similarly situated people are treated differently. Equal Protection Clause of the Fourteenth Amendment, along with the Fourteenth Amendment's substantive due process protection, prohibits the states from passing a law inhibiting an individual's exercise of fundamental rights unless the law passes strict scrutiny.

Unprotected and Low-Value Speech

Rule: A regulation that relates to unprotected speech must pass the rational basis test. "Unprotected speech" includes: - Speech that advocates violence or unlawful action - Fighting words (more than annoying or offensive) - 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 - Obscene speech - Defamatory speech

Religious Activities Conducted at Public Schools

Rule: Generally, religious activities conducted in public schools violate the Establishment Clause because their primary purpose is to promote religion Valid activity = Religious club holding its meetings in a public school.

Conduct Regulation

Rule: Laws that regulate conduct and create an incidental burden on speech are allowable if: - The regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; and - The incidental restriction on speech is no greater than is necessary to further that interest. EXAMPLE: It is constitutional for the government to restrict people from burning their draft cards.

Content-Based Discrimination

Rule: Strict scrutiny applies when the government engages in content-based discrimination 5 Exception: - If the government passes strict scrutiny. - Unprotected or low-value speech. - Government as speaker. - Content-neutral conduct regulation. - Content-neutral time, place, and manner regulation.

Dobbs v. Jackson Women's Health Organization (2022)

Rules no fundamental right to abortion exists under the Constitution. It is now within the purview of the states. Old rule related to pre-viability choice to have an abortion (under a privacy right interest theory)

De facto segregation

Segregation in fact but not by operation of law. This isn't discrimination, as there's no state action

Public Function Exception

Some jobs or activities may be withheld from resident aliens, including: • Police officers; • Governmental officials; and • Public school teachers. SS was applied but passed.

Obscene Speech Test

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

Dormant Commerce Clause

States cannot discriminate against out-of-state economic actors. 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. Rule: State laws that regulate interstate commerce even-handedly to effectuate a legitimate local public interest will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. 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.

Race Discriminatuon

Strict scrutiny applies to classifications based on race. Such laws will be presumptively invalid absent a showing by the state that the measure is necessary to achieve a compelling state interest. Where a law appears neutral on its face but in its application has a disproportionate effect on a particular class of persons, strict scrutiny will apply only if the court finds that a discriminatory purpose exists

Vagueness

The "vagueness" doctrine is closely related to the "overbreadth" doctrine. Governmental regulations must be drawn "with narrow specificity" and not vague. Examples of statutes found to be "void for vagueness" - Statute making it a crime to treat the flag contemptuously. - State law that denies a government job to people who are subversive

Freedom of Expression

The 1st Amendment was held applicable to the states through the Due Process Clause of the 14th Amendment

Contract Clause

The Contract Clause provides that state or local laws that substantially impair existing contract rights will be struck down unless the law is necessary to achieve an important and legitimate public interest and the regulation is a reasonable and narrowly tailored means of promoting that interest The degree of judicial scrutiny applied to government impairment of contracts is generally rather low. However, enhanced scrutiny is warranted when the government itself is a party to the contract, because the legislative assessment of reasonableness is somewhat suspect when the state is looking over its own actions

14th Amendment (Procedural Due Process)

The Fourteenth Amendment states that no state shall deprive any person of life, liberty or property, without due process of law. Deprivation of liberty includes freedom from bodily restraints, physical punishment, or commitment to a mental institution. Once deprivation is established, a court will determine what type of process is due by weighing: (1) the private interest affected; (2) the risk of erroneous deprivation and the probable value of additional procedures; and (3) the government's interest in streamlined procedures.

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.

Executive Treaty Power

The President has the power to make treaties with the consent of the Senate. The Senate NOT the House) 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).

Executive Military Powers

The President is Commander-in-Chief of the military. 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.

Admiralty and Maritime Power

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.

Cox Broadcasting Co. v. Cohn (1975)

The Supreme Court held that a newspaper or broadcaster cannot be held for liable for publishing truthful information contained in a public record. The Supreme Court held this case involved protected First amendment speech, which requires that the statute be evaluated under a strict scrutiny test. In order to be held constitutional, the state must show that the government interest involved is necessary to achieve a compelling interest, and that the statute is narrowly drawn to achieve that interest. In Cox, the Supreme Court held that while the interest of protecting the privacy is compelling, the statute was not narrowly drawn to achieve that interest, because the state itself was disseminating the information by including the names in the public records of judicial proceedings involving rape claims.

Government Funding of Religious Institutions

The U.S. Supreme Court has upheld grants of public funding for religious colleges and universities when the funds are used for non-religious purposes. So long as the primary purpose and effect of the funding is non-religious, the Supreme Court has held that the risk of excessive government entanglement is minimal at the post-secondary level because religious colleges and universities are primarily secular educational institutions, unlike primary and secondary religious schools where religious instruction is stressed.

Pretrial Publicity Restraining Order

The court considers three factors in determining if a restraining order against pretrial publicity is appropriate: - Nature and extent of the pretrial publicity; - Availability of other measures to mitigate the effects of pretrial publicity; and - 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: - Careful voir dire of jury; - A change of venue; or - Postponement of the trial

At-Large Voting Process

The entire city is one large voting district Can dilute the strength of groups of voters ny race. Thus, the at-large election process must be scrutinized for its discriminatory impact on the racial groups

Anti-Commandeering Doctrine

The federal government can't force states to act in their sovereign capacities (i.e., legislate or enforce laws). NOTE: 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.

Occupy the Field Preemption

Even if a state statute is not expressly preempted, the statute may be impliedly preempted if Congress intended the federal law to "occupy the field." A court will consider: (1) whether the federal scheme is so comprehensive that Congress left no room for the states to enact supplemental laws; and (2) whether there is a need for a uniform regulatory scheme to avoid confusion and difficulty in administration.

Case or Controversy

Even if 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" (justiciability questions) To get into federal court, one must go up RAMPS: - Ripeness - Abstention - Mootness - Political Question - Standing

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 - Something in the Constitution suggests that ultimate decision-making authority is given to another governmental actor; and - The required decision is political rather than legal in character

Free Excercise Clause

Free Exercise Clause of the First Amendment, as applied to the states through the Fourteenth Amendment's Due Process Clause, absolutely protects religious beliefs. - That is, as long as the belief is religious and held in good faith, the government cannot regulate, restrict, punish, or even inquire as to the truth of those beliefs. - The government may regulate conduct inspired by a religious belief, but not the belief itself.

Affirmative Action - Gender

Gender based affirmative action need only pass intermediate scrutiny. 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.

Tax Deductions for Religious Institutions

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. 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

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.

Sexual or Indecent Speech

Indecent speech is fully protected but can be regulated on the basis of secondary effects. Rule: Secondary-effects regulations must serve a substantial government interest and leave open reasonable alternative channels of communication EXAMPLE: A city can impose zoning restrictions on adult theaters, even if it restricts the theaters from 95% of the city.

De jure segregation

Laws that deliberately segregate on the basis of race This will face strict scrutiny and almost always be found unconstitutional

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).

Right to Medical Care

Medical care is a "vital government benefit" that cannot be denied absent a showing that the state's actions are necessary to achieve a compelling state interest and the means of achieving the goal are the least restrictive available. Ex. The Supreme Court has struck down a one-year residency requirement as a prerequisite for receiving medical benefits.

Fundamental Rights

Note: Not every form of government regulation regarding right to vote receives strict scrutiny. Some voting restrictions are constitutional, while others are not.

Family Relation Rights

One of the most striking expansions of the substantive due process doctrine in recent years has been in the area of family relations. As a general rule, the Supreme Court has found that a person's decision about how to conduct her family relationships (e.g., marriage, childbirth, child rearing, and cohabitation with one's relatives) often rises to the level of a fundamental right. Consequently, the state may interfere with such a decision only when it shows the regulation is necessary for the fulfillment of a compelling public interest (strict scrutiny)

Substantive Due Process

This is a doctrine whereby substantive rights not specifically referenced by the Constitution's text are protected. Such rights are said to be "implicit in the concept of ordered liberty" or are "deeply rooted" in our history and tradition Rule Statement: Substantive due process assures that a law will be fair and reasonable, not arbitrary. Review under this will be triggered where the law affects the rights of all persons with respect to a specific activity, just not the right of some persons with respect to a specific activity (equal protection).

State (Government) Action Requirement

To assert a constitutional violation, the plaintiff must show there was state (government) action This does not apply to the 13A

What process is due? (procedural)

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; - deprivation of this interest through - The government's interest in streamlined procedures.

Eminent Domain Proceeding

Typically, the purpose of an eminent domain trial is to determine the fair market value of the property, including compensable interests If an eminent domain proceeding would only constitute zoning in this case, there would be no "taking" as defined by constitutional precedents, and no compensation would be required

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.

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

Lawrence v. Texas

Under the Due Process Clause of the Fourteenth Amendment, a state government has no legitimate interest in prohibiting private sexual activity between consenting adults

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'slicense Note: there is a property interest if the employment is under a tenure system or there is a clear understanding, either expressed or implied, that the employee can be terminated only for cause "Life" = If the state is trying to execute someone it must provide due process of law (capital punishment).

Privileges and/or Immunities Clause

"OR" (narrower): 14th Amendment Privileges or Immunities Clause allows citizens to travel freely from state to state and to set up residency in a new state - 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. "AND" (broader): Comity Clause, Article IV, Section 2 provides that "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 - Test: The state can discriminate if it is substantially related to a substantial state interest.

Four kinds of takings

(1) Direct Government Appropriation: Where the government actually takes someone's property (2) 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; - The regulation deprives the property owner of all economically beneficial use to the property; or - 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 governmentaction (3) Temporary Restrictions: Does not permanently deprive the owner of all economically beneficial uses of his land (4) 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. (no taking if these two are met)

Roth-Miller Definition of Obscenity

(1) the material must have as its dominant theme the appeal to prurient sexual interests; (2) it must be patently offensive to contemporary community standards; and (3) the material must lack serious literary, artistic, political or scientific merit Note: It is entirely proper under this definition for the "patently offensive" prong of the test to be applied based on local community standards.

EPC 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

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.

Retroactive Legislation

Bill of Attainder 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.

Civil War Amendments

Congress has the power to enforce: - The 13th Amendment, which bans slavery; - The 14th Amendment 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. 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. 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

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).

Power of Eminent Domain

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

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: - Activate the military draft and selective service; - Initiate wage, price, and rent control of the civilian economy; and - 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.

Defamatory Speech Tests

Constitutional restrictions apply to defamatory speech where the plaintiff is either a public official or public figure, or where the defamatory statement involves a matter of public concern. Private person, matter of private concern - plaintiff does not need to prove actual malice. The plaintiff need only show negligence in order to recover according to common law defamation principles. Private person, matter of public concern - plaintiff must prove negligence about the truth or falsity of the statement (no malice required). Public official/figure, matter of public or private concern - plaintiff 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 - plaintiff must prove actual malice.

Kennedy v. Bremerton School District (2022)

Court held that a coach praying onthe field alone after a football game, even though he was a public employee in a public place was not engaged in speech ordinarily w/in the scope of his duties as a coach Therefore, using the Free Speech Caluse or the Free Exercise Caluse, the standard remains the same for the gov seeking to restrict this speech (strict scrutiny) In addition, the violation of a Free Speech or Exercise are not overcome by concerns about Establishment Clause violaton Abandoned (but did not overrule) Lemon in favor of an analysis of a violation of the establishment clause based on reference to historical practices and understandings w/ analysis focused on orginal meaning and history Also focused on coercive religious observance Test: 1. government actor? 2. free exercise of religion - are they attempting to exercise their religion? is it during their work as a governmet actor? 3. establishment clause - do we have coercion occuring?

Time, Place, Manner

The government 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). Public forum restrictions 3 Part Test—The regulation must: - Be content-neutral, as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others); - Be narrowly tailored to serve an important government interest; and - Leave open alternative channels ofcommunication Non-public forum restrictions Speech-related activities at non-public forums, such as military bases, jails, government workplaces, and mailboxes can be regulated by viewpoint-neutral regulations. Test: The regulation must be reasonably related to a legitimate government purpose

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.

Press

The press has no greater freedom to speak than an ordinary member of the public. 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 government and are exercising a privilege the government gives them Where cable TV operators are subjected to content-neutral regulations, intermediate scrutiny is applied.

Public School Curriculum

The state cannot put religious classes in public schools (i.e., anti-evolution laws).

Executive Power

VAPER 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. - 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 Appointment: The President appoints "high-level officials" such as Ambassadors and Cabinet members with the advice and consent of the Senate Pardon: 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 AND A pardon cannot undo an impeachment, because it is not a criminalconviction. It cannot restore someone to office Enforcement: President can enforce but not create laws Removal: - 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.

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.

14th Amendment (Substantive Due Process)

When a plaintiff brings a substantive due process claim against the state for interference with a fundamental right, the court will apply strict scrutiny, meaning the state bears the burden of proving that the law is necessary to further a compelling interest. The word necessary means that there is no less restrictive alternative means available

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.

Direct and Indirect Conflict (Preemption)

When evaluating whether a state or local law violates the Supremacy Clause, the possibility of conflict with existing federal law is most relevant. A direct conflict exists when the Constitution or the federal law expressly prohibits state or local regulation of a subject. Three factors determine whether the state law indirectly conflicts: (1) whether the subject needs to be uniformly enforced; (2) whether the federal regulatory scheme is so pervasive and extensive as not to leave room for state or local law; and (3) whether the existence of the state or local law would obstruct the full accomplishment of the federal purpose (Example: A state attempting to regulate commerce and/or employment of aliens --> Congress has virtually unrestricted power to regulate interstate commerce and the immigration and naturalization of aliens) NOTE: Where a subject matter has traditionally been left to the states, it is less likely to be found to be the subject of federal preemption. One of these areas is cases involving health and safety regulations. Unless the federal government has indicated that it intends to completely occupy the field, states are free to enact more stringent regulations.

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.

entwinement

Where a private entity is carrying on activities traditionally performed by the government (Public-Function Theory)

entanglement

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 (Significant State Involvement Theory)