MBE Con law Themis 2019

What is state action? • Most state action is clear, but not always. Government cannot be significantly involved in Governemnt cannot______, ____form private discrim. Govt can't _______ a private agreement to discriminate. What is govt not required to do with private discrim. Generally, the government acts constitutionally so long as its own conduct is Anti-Dsicrim Statutes: State action is required to show ___________; State action is irrelevant if __________ But, govt is not required to ________ Generally, govt acts constitutionally as long as _______ state action v. anti discrim statutes

"State action" means _government action, whether state or local (e.g., a county firing a sheriff is state action; a city denying a permit is state action). • Most state action is clear, but not always. Government cannot be significantly involved in private discrimination. o Significant state involvement: Government cannot facilitate private discrimination. Government cannot profit from private discrimination. Government cannot enforce a private agreement to discriminate. But, government is not required to prevent private discrimination. o Generally, the government acts constitutionally so long as its own conduct is neutral and even-handed (e.g., trespass laws, liquor licenses for private clubs). • Anti-Discrimination Statutes o State action is required to show a violation of the Constitution. o State action is irrelevant if there is anti-discrimination legislation.

Standing Requires (just list)

(1) Injury, (2) Causation, (3) Redressability

Quasi Suspect classifications: Legitimacy when something depends on _______________ almost lways ______ especially if ________

(i.e., something depends on whether parents were married at the time of one's birth) laws are almost always invalid, especially if punitive in nature

What is unique about the SCOTUS J?

The Supreme Court is the only federal court that exercises discretionary jurisdiction.

Powers of the President : Foreign Affairs President as Commander in chief: what can he do? what does cong have exclusive power to do with foreign affairs? Cong and spending for war: What is thir power? Treaties: what is rquired; what happens once a treat is ratified? Exec Agreements: What is requried? What is an example? What is their effecgt on statutes? What do they take precedence over? Do they have binding status?

. The Powers of the President—Foreign Affairs • Commander in Chief: The President has control over military decisions, although Congress has exclusive power to __decalre ware o Congress can cut off funding to military actions. • Treaties and Executive Agreements o Treaties are negotiated by the President, but require approval by a __2/3___ vote of the Senate. Once a treaty is ratified (approved), it has the same authority as a statute. o Executive agreements are presidential negotiations not submitted for approval by the Senate. (Iran Nuclear Deal) They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. They do not have the binding status of a treaty.

To decide what kind of process is due the courts balance 3 factors:

1) The individual interest at stake (life, liberty, property); 2) The value of the procedure in protecting that interest; and balance that against 3) The governmental interest in efficiency and cost.

Standing: Injury what can be an injury? past or future? must be _____and ______ (not ______) What about freedom of movement or enjoyment of public space?

1. Injury o Almost anything can be injury, especially if Congress says so (either past or future). o Must be concrete and particular (not abstract), but need not be economic If your freedom of movement or enjoyment of public space is impaired, that constitutes injury.

Regulation of the Media The press and media __________ special privileges. They have ___________Rights as everyone else. When asked about law on the media, ask whether ________ Press and open trials Broadcasters: anything unique about them?

1. No Special Privileges The press and media have no special privileges. They have the same rights as everyone else. Exam Tip 13:When asked about a law on the media, ask whether that law could be applied to you. Example 44: Open trials—The press has the right of access to open trials. 2. Broadcasters o The only special case is broadcasters. o Traditionally, because of early limits on the broadcast spectrum, the government had greater regulatory authority over broadcasters than over print media or the Internet.

jurisd of the SCOTUS- orignal jurisd: what kinds of cases? Most jurisd of the SCOTUS is _________ almost all cases that come to SCOTUS come by ____ Key factor for cert is _______

1. Original Jurisdiction A case may be filed first in the Supreme Court (controversies between states, mostly). 2. Appellate Jurisdiction Mostly, the jurisdiction of the Supreme Court is appellate. a. Certiorari Almost all cases come to the Supreme Court by way of writ of certiorari. The key factor is that granting a writ of certiorari is discretionary with the court.

Bills of Attainder a bill of attainder is a _______ punishment imposed _________________ Is it constituional? cannot legislate ______

A bill of attainder is a ____legislative_________ punishment imposed without judicial trial and is unconstitutional. cant legislate criminal guilt

Establishment of Religion Three part lemon test: 1) does the law have _______ 2) Does the law have a primary ________________ 3) does the law avoid _____________ Issues with the tesT? It once was interpreted to condemn ___________, but now ___________

1. Three-Part Test of Lemon v. Kurtzman: o Does the law have a secular (no-religious) purpose? o Does the law have a primary effect that neither advances nor inhibits religion? o Does the law avoid excessive government entanglement with religion? 2. Deficiency of Lemon Test o Exceedingly difficult to apply o It once was interpreted to condemn aid to religious primary and secondary schools, but neutral aid is now allowed (goes to everyone). The government gives aid to parents and the parents are allowed to send their children to the schools of their choice. The parents are making the decision as to whether a religious school gets the money. • The government is not picking and choosing recipients.

Legislative Powers: the power to enforce the civil war amendments: what are these? These powers add to the powers grantd to cong under _____

13th, 14th, and 15th amendment These powers add to the powers granted to congress under Article I

15th Amendt What is it? What to lookout for on exam day?

15th Amendment --> Congress has the power to ensure there is no racial discrimination in voting On exam day, be on the lookout for Congressional acts that mirror RFRA. Remember that such acts are generally valid as to Congress, but invalid as applied to the states and localities.

Examples of non-just questions:

1: Guarantee Clause (protecting the republican form of government); 2: Foreign affairs, e.g., opening or breaking off diplomatic relations with another country; Ex: 7: Congress enacted a law stating that American citizens born in Jerusalem could list Israel as their place of birth on their passports, which the executive branch challenged. The Court held that a dispute over the regulation of passports is somewhat related to foreign affairs but is nonetheless justiciable. 3: Impeachment procedures; and 4: Political gerrymandering (drawing districts to establish a political advantage of one party over another).

DCC Exceptions

1: State as market participant - state buys or sells goods or services, it can choose to only deal with in-state person and 2: Subsidy Exception - state can always choose to subsidize its own citizens (welfare benefits or in-state tuition) EX of market participant: Sale of cement produced by state-owned plant only to instate purchasers; garbage stored in state-owned landfill limited to in-state garbage; law requiring 50% local workforce on state-financed construction projects.

Regulation of Unprotected and less protected Expression: Fighting Words What is it? what is not enough? Must be_____ In theory, fighitng words are ________ all fighting words statuteso n bar exam are ______ regulations cannot punish only fighting words that express ________

3. Fighting words o Words likely to provoke an immediate breach of the peace_. General vulgarity is not enough. Must be aimed/targeted at someone, and that person might hit back. In theory, fighting words are not protected speech. In fact, all fighting words statutes on the bar exam are unconstitutionally vague and/or overbroad (e.g., laws against "hate speech"). certain viewpoints

Standing: Redressability What is it?

A court can remedy or redress the injury.

Standing: Causation

A defendant's conduct has caused or will cause the injury.

A federal tax that is_______________-, but instead on ___________ , is constitutional.

A federal tax that is not directly imposed on a state, but instead on payments made by the state to a private person, is constitutional.

A local government _____________exact promises from a developer, such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits. Such exaction's ____________violate the Takings Clause if there is an __________

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is an essential nexus between legitimate state interests and the conditions imposed on the property owner, and a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.

AISG What is it? When does it arise? What is the rule? What is adequate?

Adequate and Independent State Grounds (AISG) Arises only in the U.S. Supreme Court, and it arises only when the Supreme Court reviews a state court judgment. (highest state court) *Rule* The Supreme Court can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on an adequate and independent state ground. Adequate: The state ground must control the decision no matter how a federal issue is decided. When does this happen? When the federal claimant (i.e., the party asserting a federal right) wins anyway under state law.

Non-suspect classifications: Age Age discrim in eement is ______________ by statute, but it is not a _______________ under EP clause Triggers what scrutiny?

Age discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under the Equal Protection Clause. Triggers rational basis

11th Amdt: you cannot sue state fro money damages n either the state's own court or federal court unless the state consents or Congress expressly says so, but you CAN DO THIS__________ Who does the 11th amdt protect? Who does it not protect? State's sov immunity applies in __________ and ________ court unless ___________ What can state do with sov immunity? When enforcing individual rights, what can congress do? How? The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when _____-

Although you cannot sue a state for money damages in either the state's own court or federal court unless the state consents or Congress expressly says so, you may sue a state for money damages in a sister state's court. Note that the 11th Amendment protects states and state agencies, not local governments (i.e., no immunity for cities, counties, or towns). • Note also that a state's sovereign immunity applies in both federal and state court, unless the state consents, or Congress expressly says so to enforce 14th Amendment rights. State can waive sov immunity o When enforcing individual rights, Congress can overrids state sovereign immunity. o It can force states to pay money damages for violating individual rights, but it must say so expressly.o Any lack of clarity will preclude damages. 11th Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law.

When does an org have standing?

An organization has standing if its members have standing.

The Supreme Court must hear by direct appeal ________—those that come from a decision on_________issued by:

The Supreme Court must hear by direct appeal only a small number of cases—those that come from a decision on injunctive relief issued by a special three-judge district court panel.

14th amdendmnt congress has the power to remedy violations of _____________ but only __________ congress cannot _______ Const rights by ___________ Only permits congress to adopt ______________

Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts. o Does not enable Congress to redefine constitutional rights by legislation o Only permits Congress to adopt remedies reasonably designed to enforce individual rights as they have been defined by the courts

Export Taxation Clause: Congress may not _____________

Congress may not tax goods exported to foreign countries. Under the Export Taxation Clause, a tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited.

PDP Life- death penalty requires __________ Liberty: _____confinement, ______ and parole,_______, phys __________, any restriction on ____________,

Breakdown of loss of life, liberty, and property o Life: Death penalty requires procedural due process o Liberty: Physical confinement, probation and parole, physical injury (such as a spanking in school), any restriction on legal rights (including being punished for free speech). o Property

13th Amdt Cong has the borad power to legislate________ what does it include?

Congress has broad power to legislate against racial discrimination, whether public or private. • Includes purely private racial discrimination

The War and Defense Powers Congress has the power to ____________ congress can provide for military __________ of US Military personnel Cong can provide for military ______ of Enemy combatants and enemy civilians Congress cannot?

Congress has the power to declare war and the power to maintain the Army and Navy. o Congress has the power to provide for military discipline of U.S. military personnel. o Congress can provide for military trial of enemy combatants and enemy civilians. o Congress cannot provide for military trial of U.S. citizens who are civilians.

Anti-Commandeering What can't congress do? What can congress do? While Congress has the power under the spending power to spend for the general welfare and may impose conditions on the receipt of an appropriation by a state, such conditions must be ____________

Congress cannot force states to adopt or enforce regulatory programs. It cannot commandeer state and local agencies to implement federal programs. What can Congress do to enforce regulatory programs? It can bribe states through use of the spending power. It can adopt its own regulatory program and enforce it with federal officers. Congress has the power under the spending power to spend for the general welfare and may impose conditions on the receipt of an appropriation by a state, such conditions must be set out unambiguously to be enforceable.

When does strict scrutiny apply?

Applies when there is a suspect classification or a fundamental right

Executive powers that are exclusive to the president: Only the President or _______ can ____________ Who are executive officers? some senior officers, like ___________ Require the ______________ Senate has the power of _______________ Senate's approval power does not __________ Cong can hire or fire people who _____________________ Just as cong cannot hire or fire an executive officer, it cannot give _______ Once officer is under legislative control, ______________________________ Who can cong hire or fire? What cant cong do- it cant give ____ power to any officer it can _______ Congress may delegate the appointment of ________officials to the President. ________officials are those supervised by Senate-confirmed appointees.

Appointment and Removal of Executive Officers: Only the President (or his appointees) can hire or fire executive officers. Who are executive officers? Anyone who takes action on behalf of the U.S. Some senior officers (e.g., cabinet officers, ambassadors, federal judges) require the advice and consent of the Senate. The Senate has a power of rejection. The Senate's approval power does not translate into a power of appointment. Congress can fire or fire people who don't act, ppl who investigate, who advise, who recommend, etc. Just as Congress cannot hire or fire an executive officer, it cannot give executive power to any officer it can hire or fire. Once the officer is under legislative control, any attempt to give the officer executive power is unconstitutional. Inferior

Judicial Power Where is source? What is the scope- The jurisdiction of federal courts is limited to (types?)

Aritcle III The jurisdiction of federal courts is limited to cases or controversies Article III lists the kinds of cases that come within the judicial power of the United States— the most important are diversity jurisdiction (i.e., disputes between citizens of different states) and federal question jurisdiction (i.e., cases arising under federal law).

Delegation of powers Can congress delegate its power? to whom? What kind of a test is it?

Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power. o Not a demanding test—almost all delegations of legislative powers are upheld. Almost any guidance to the delegate is considered sufficient, and there is almost no practical limitation to Congress's ability to delegate.

Limitations on SCOTUS J?- What can congress do?

Congress can make exceptions to the Court's appellate jurisdiction (i.e., Congress can effectively control the Supreme Court's docket (its appellate jurisdiction) by legislating exceptions to its appellate jurisdiction)

Contract Clause bars states from ___________ exisitng Ks unless ____________ example?

Contract Clause—Bars states from legislative impairment of __existing____ contracts, unless there is an _____overriding_____ need (something like an emergency). Ex: Great depression, value of money was down, can alter terms of exisitng Ks

What are the stds of review of DP and eP?

the same: SS, IS, RB

Impoundment what is it?

If a statute gives the President discretion to spend or withhold funds, he may do so. But, if a statute unambiguously requires that certain funds be spent on certain purposes, then the President cannot refuse to do so. There is no power to impound (withhold) funds. (just because he disagrees with cong's decision)

If l l p are being taken away, what process is due? DP is on a range (little to a lot):

DP is on a range (little to a lot) Procedural DP is variable, and the types of hearings can range from casual to very elaborate.

Limited Public forum what is it? what can be regulated what is not a limited public forum- school auditorium

Describes a place that is not a traditional public forum, but that the government chooses to open to all comers (e.g., a municipal theater that anyone can rent). In such areas, only time, place, or manner regulations are allowed, but this is a narrow category. A school auditorium is not a public forum, limited or otherwise. Just because a school auditorium is open to some speech does not mean it has to be open to all.

components of 14th amdt

EP Clause DP clause P or I of National citizenship clause

DCC: examples of no discrimination against out of state interests 1) There is no_________ against out of state interests; what are examples? When is it hypothetically ok? Exceptions to no discrimination against out of state participants? (State as a ________; subsidies; remember the DCC only applies in the __________. If Cong auth or __________ to regulation of commerce, __________ even if it _______) 2) The regulation does not ______________ and (non-dscrim state regulation of commerce is ______. When is is struck down? What kind of test is it?)

Examples include: forbidding sale of only out-of-state products; taxing out-of-state products at a higher rate; requiring that manufacturing be performed in-state. Hypothetically ok if there is a substantial state interest and no other non-discriminatory means is available; this is incredibly rare. • Federal Approval—Remember, the Dormant Commerce Clause applies only in the absence of federal action. If Congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests ********************************************* 2) The regulation does not unduly burden interstate commerce; and non-discriminatory state regulation of commerce is almost always upheld. Only when it is so outrageously costly relative to the benefits of the regulation is a non-discriminatory state regulation struck down as an undue burden on interstate commerce. This is a balancing test, but non-discriminatory regulations are rarely struck down.

Examples of private employment that cant depend on residency? Examples of public eement that can depend on residency? Non-serious discrimination?

Examples of private employment requirements (can't depend on residency): Admission to the bar; other occupational licenses. Examples of public employment (can depend on residency): A city hiring only city residents or requiring a certain percentage of city residents on city construction projects. o Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access.

Regulation of Unprotected and less protected Expression: Defamation What is it? Public officials/figures: what do they need to show? Private plaitniffs: what do they need to show?

False statements of fact (not opinion) damaging to a person's reputation can be prohibited. o Public officials and public figures can recover for defamation only on proof of knowing or reckless falsity. (conscious recognition of the risk) o Private plaintiffs can recover on proof of neglgient falsity.

Advisory Opinions and federal courts what is the rule? fed cts and constitutionality of proposed legislation? fed cts and prelim recs?

Federal courts cannot issue advisory opinions. Federal courts cannot rule on the constitutionality of proposed legislation. (no prelim recs)

Federal Taxpayers and Standing What do federal taxpayers have standing to challenge? What do fed taxpayers not have a standing to challenge? Exceptions? What do state cts allow muni taxpayers to do?

Federal taxpayers always have standing to challenge their own tax liability. However, taxpayers do not have standing to challenge government expenditures (because govt expenditures don't affect tax liability) Narrow exception under the Establishment Clause: An establishment of religion challenge to __specific_______ congressional appropriations can be raised by ___any taxpayer__. The exception does not apply to the expenditure of general discretionary funds by the executive branch. (Note also that state courts often allow municipal taxpayers to challenge a municipality's expenditures.)

REgulation of Association cannot be punished or idsadvantagesd because of _________ Loyalty oaths: public ees _______ to take a loyaly oath to the ________ but __________. bar membership: states can _______but they cannot _______ Political parties and open primaries: states cannot require _______________. Is the Freedom of Associaiton absolute ? when can the govt infring on that right? What mus the individual demonstrate to be punished? Can a state institute a blanket primary system in whichall voters particpate? Waht cant a state do with a political party?

Freedom of association: Cannot be punished or disadvantaged because of political associations. • Loyalty oaths: Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as vague and/or overbroad. • Bar membership: States can investigate good character, but they cannot deny admission based on political affiliations. • Political parties: States cannot require open primaries (i.e., one in which you do not have to be registered as a member of the particular party to participate in the primary). Party itself gets to decide that No; The government may justifiably infringe the right of association to advance a compelling state interest, such as preventing discrimination or subversive activities designed to undermine the democratic process. A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization's illegal activities, and (iii) has a specific intent to further those illegal objectives. A state may institute a blanket primary system in which all voters participate. However, the First Amendment freedom of expression and association prohibit states from interfering with a political party's endorsement of a candidate or selection of a candidate.

Full faith and credit clause: states do not have to _________ but they do have to give full faith and credit to _________

Full Faith and Credit Clause: States do not have to follow other states' laws, but they do have to give full faith and credit to judgments rendered by other states' courts, so long as the rendering court had jurisdiction to render a final judgment on the merits.

fundamental Rights: obscene material Fundamental right to __________obscene in the ___________ However, not fundamental right to____________ does not apply to ___________

Fundamental right to read obscene material in the privacy of one's own home. However, no fundamental right to purchase, sell, import, or distribute such material. Does not apply to child pornography

Government seizure of real properry pursuant to a forfeirue statute v. seeizure of personal property ursuant to a forfeirue statute: what is teh differencE?

Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute. However, the government does not need to provide notice prior to the seizure of personal property.

What are the rules for state taxation of interstate commerce? Disc taxation struck down unless ________ and non discr taxation will be _________ unless ______ When is non discrim taxation valid? 1) substantial nexus__________; what does this not require? 2) Must be a __________; For example. state can tax a corp's revenue ___________

Generally, the requirements are the same as for any other state regulation of commerce: Discriminatory taxation will be struck down unless Congress consents, and non-discriminatory taxation will be upheld unless it is unduly burdensome o Non-discriminatory taxation is valid if the following two requirements are met: 1) Substantial Nexus between the taxing state and the property or activity to be taxed • "Substantial nexus" does not require any kind of physical presence. 2) Must be a fair apportionment of tax liability among states (state can tax a apart of the corp's revenue that is equivalent to in state activity or revenue) Cannot tax the worldwide activity of the corp

DP v. EP

If a law denies a fundamental right to everyone, it violates DP o If a law denies a fundamental right to only some, it violates EP

Taking: In what situation does the govt not have to compensate?

Gov may destroy property in response to a public peril without the payment of compensation

Procedural DP: How can you tell whether you have an entitlement to a govt job or whether you have a mere expectation of govt entitlement?

Government jobs are entitlements only when the government says so—such as by providing a contractual term or discharge only "for cause."

Comity clause Guarantees _______________ Forbids serious discrimination against _____ absent.... Who doesn't it protect? what does serious discrim involve? What is the rule- states cannot require that you: What can states do with residency?

Guarantees Privileges and Immunities of State Citizenship under Article IV Forbids serious discrimination against out of state individuals, absent substantial justification. Does not protect out-of-state corporations. "Serious discrimination" typically involves employment. o Rule: There can be no legal requirement of residency for private employment. States cannot require that you live or reside in the state to work in the state. However, public employment can require residency

What does president have no immunity for? President has executive privilege _____________ What can that privilege be outweighed by?

Has no immunity for acts done prior to taking office Has an executive privilege not to reveal confidential communications with presidential advisers Congress and public, but that privilege can be outweighed by a specifically demonstrated need in a criminal prosecution (U.S. v. Nixon)

The Executive Power: Powers of the president Has the power to _______the law and not ______ or _______ Power is the greatest when _____ powers are subject to control by

Has the power to enforce the law, not to make it or break it • The power to enforce is greatest when authorized by statute Generally speaking, the President's powers are subject to control by statute.

when do voting and ballot requirements become unconstitutional?

If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional.

If you cant sue state, who can you sue? What relief can you get? What relief is barred?

If you can't sue a state, then whom can you sue? Answer: A state officer • Injunctive relief—you can always get injunctive relief simply by enjoining the appropriate state officer (e.g., sue the state attorney general) • Money damages—you can also get money damages, but only from the officer personally for some kind of constitutional tort • Damages from the state treasury are barred (unless the state consents or Congress expressly says so to enforce individual rights).

Dormant Commerce Clause Rule (3)

In the absence of federal regulation, state regulation of commerce is valid so long as: 1: there is no discrimination against out of state interests; 2: Unduly burden interstate commerce; or 3: regulate wholly out of state activity

fundamental rights: privacy Contraception: It is a ________right for __________Whether _________to _____________

It is a fundamental right for everyone, whether married or not, to purchase contraceptives.

fundamental rights: family relations: this includes the right to______________

Includes the right to live together with close relatives

What is independent? There is no AISG if state law____________ fed law

Independent: The state law does not depend on an interpretation of federal law. No AISG if state law adopts or follows federal law.

Injury to reputation without more: Is this a loss of liberty?

Injury to reputation without more is not a loss of liberty.

Relations Among States: Interstate compacts are ________. Can states make these? What is the limitation?

Interstate compacts are agreements among states. States can make interstate compacts, but if the compact affects federal rights, Congress must approve.

Standards of review for Substantive DP and Equal Protection: Strict Scrutiny: what is the standard? -Requires ________means. If there is a less ________then...

Is the law narrowly tailored for a compelling government interest? o Implicit in strict scrutiny is the requirement for the least restrictive means. If there is a less restrictive means, then the chosen way is not truly necessary

Standards of review for Substantive DP and Equal Protection: Intermediate Scrutiny -what is the standard? -Applies to?

Is the law substantially related to an important government interest? Applies to classifications based on gender and legitimacy

Endorsement of Religion What is the rule? but many endorsements are upheld, like_____________ What is SCOTUS concerned with? Es.t clause prohibts govt endorsement of religion in a context that _____________ Officially sponsored school prayer Officialy sponsored graduation prayer Bible reading Display of Ten commandments? Teaching ten commandmentS? Posting ten commandments in classroom? Posting Ten commandments in courthouse? laws about teaching evolution? Legislative prayer Nativity scenes?

It is a violation of the Establishment Clause for the government to endorse one religion overanother and also to endorse religion over non-relgion___. But, many endorsements are upheld, such as "In God We Trust" on currency. o The Supreme Court wants to prevent _____coercive_____ endorsement of religion (one that might override individual choice). The Establishment Clause prohibits government endorsement of religion in a context that might prove coercive on an individual's conscience. Examples: • Officially-sponsored school prayer is unconstitutional. • Officially-sponsored graduation prayer is unconstitutional. • Bible reading is permissible, but cannot be inspirational (e.g., as literature or poetry). • Display of the Ten Commandments is sometimes okay. It can be displayed for secular purposes (e.g., historical or promoting morals), but not to inspire religious belief. o Can teach the Ten Commandments in school as an example of an early legal code. o Cannot post the Ten Commandments in a classroom and leave it there every day of the school year—designed to inspire religious belief. o Cannot post the Ten Commandments in a courthouse if the context makes plain that the purpose is to endorse religious belief. • Laws prohibiting teaching evolution have been struck down. • Legislative prayer is okay for historical practices. • Nativity scenes are okay on public property if there is something else there to dilute the religious message (e.g., Hanukkah symbols, Rudolph the red-nosed reindeer).

Immunity: Judges What do judged have absolute immunity for? What do judges not have immunity for?

Judges have absolute immunity for all judicial acts, but may be liable for non-judicial acts (e.g., employment discrimination).

The Tax Power What is this? What is the standard?

The Taxing Clause is the right answer whenever Congress imposes a tax, even when the tax is actually used to prohibit the good or activity in question. The tax need only be rationally related to raising revenue.

laws that disadvantage minorities will be _____________ what is required? For const purposes, a law is a racial classification only if the Ps show_____________. not enough to show__________ How can it be shown? school segregation: de jure v. de facto

Laws that disadvantage minorities will be struck down. Discriminatory purpose is required: for constitutional purposes, a law is a racial classification only if the plaintiffs show it has a discriminatory purpose (not enough to show a disproportionate impact) Discriminatory purpose: May be explicit on the face of the statute, or may be proved by a history of discriminatory application, or by extrinsic evidence about the purposes of those who passed the law. School desegregation: De jure (by law) segregation is unconstitutional. De facto segregation is not (usually by residential housing patterns). another way of saying disc prupose required

Legislator Standing and Legislature Standing legislators do not have standing to challenge _______ because In some circ, legislature as a body may have standing, if ____________

Legislators do not have standing to challenge laws that they voted against (Just ideological exception) In some circumstances, the legislature itself as a body may have standing, if the claim concerns its institutional functions.

Most legislation related to zoning is reviewed under the _________________tandard, and a law meets that standard if it is _______________________

Most legislation related to zoning is reviewed under the rational basis standard, and a law meets that standard if it is rationally related to a legitimate state interest.

Regulation of Unprotected and less protected Expression: Commercial Speech most regulations of comm speech are ____________. So long as advertising is ________ and _______ it must be _________. TesT: Regulation of ocmm speech must ______ a _________govtal interest. Exception: what comm speeh may be prohibited?

Most regulations of commercial speech are struck down. So long as the advertising is truthful and informational, it must be allowed. o Test: Regulation of commercial speech must DIRECTLY ADVANCE a substantial government interest and be narrowly tailored to that interest. o Misleading speech: Misleading commercial speech (unlike political speech) may be prohibited.

Affirmative action in universities: are quotas allowed?

NO

Is there a fundamental right to be on a ballot or hold office?

NO

Is mere ideological objection an injury?

NOPE

Is the Necessary and Proper Clause a free standing power of Congress?

Necessary and proper clause is not a free-standing power of Congress It only works as an add-on to some other legislative power.

Fundamental Right: Refusal of medical treatment IS this a fundamental right? no right to commit_____________

Not clear whether this is a fundamental right, but there is a liberty interest in refusing medical treatment No right to commit suicide

When is an notice or hearing not required? for example, random negligence by a _______________ (example) Deprivation requires a _____

Notice and a hearing are not required when there is an accident. Random negligence by a state employee does not constitute a deprivation of life, liberty, or property (e.g., death by a municipal garbage truck). Deprivation requires the intentional taking away of life, liberty, or property.

Regulation of Unprotected and less protected Expression: There are some categories of speech that can be regulated because of content. Obsecnity: Rule of S: sexy: Must be ______What is not consideered legally obscene? o Society sick: Must be _____________; The society __________________ o Standards: Must be defined by _____________________________; not _____ or ________ o Serious value: The material must __________ If material has ___________it cannot be held legally obscene. This determination is made __________ and it must be based on a ________________ not a ___________one. Minors and legal standard of obscenity: what is the std? but the govt cannot __________ child porn: _______ Land use restrictions and obscenity: ____________ ordinances can regulate the zoning of adult theaters, but ___________

Obscenity: Defined by the rule of "S" o Sexy: Must be erotic; appeal to the prurient interest. (Gore and violence are not legally obscene.) o Society sick: Must be patenly offensive to the average person in the society. The society may be the nation as a whole, or a particular state, or a major metropolitan area. o Standards: Must be defined by the proper standards for determining what is obscene, not vague and/or overbroad. o Serious value: The material must lack serious value. If material has serious value (artistic, scientific, educational, or political), it cannot be held legally obscene. This determination is made by the court, not the jury, and it must be based on a national standard, not a local one. o Footnotes on obscenity: Minors: A lesser legal standard can be applied to minors, but the government cannotban adult speech simply because it would be inappropriate for minors. Child pornography: Can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home. Land use restrictions: Narrowly drawn ordinances can regulate the zoning of adult theaters, but cannot ban them entirely. Courts have recently begun to distinguish legally obscene speech from pornography. Merely establishing that speech constitutes pornography is generally insufficient to establish that the speech is obscene.

Legislature v. Legislator standing

Occasional legislature standing, but no legislator standing.

What is never a right answer on the MBE: P _____I of ____________ under the ________________ contrast with _______

P or I of national citizenship under the 14th Privileges and Immunities of State Citizenship Clause in Article IV (Comity Clause) has a narrow but important meaning. It prohibits serious discrimination against out-of-state individuals, especially in the context of access to the private job market, i.e. prohibits requiring those who work in the state to live in the state

Executive powers that are exclusive to the president: Pardon power: what can President do? What powers do Governor have? Can Congress limit this power? Recognizing foreign government?

Pardon Power: The President can pardon or commute punishment for any and all federal offenses. (Governors have a similar power for state crimes.) This power cannot be limited by Congress In addition to appointing and receiving ambassadors, the President has the exclusive power to recognize a foreign government.

Fundamental Rights: Parental rights Parents ahve a fund right to ____________their children_____________ including ___________ but this right is also subject to How can parents lose this fundamental right?

Parents have a fundamental right to raise their children as they see fit, including the choice of religious or private schools. While parents do enjoy a fundamental right to make decisions regarding the care, custody, and control of one's children, including the right to privately educate one's child outside the public school system, that right is subject to reasonable educational standards imposed by the state. Can lose their rights through abandonment, abuse, or neglect

fundamental rights: privacy Sexual intimacy: perhaps not technically a __________ right, but SCOTUS found that the govt has no ____________

Perhaps not technically a fundamental right—the Supreme Court found that the government has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults, including same-sex couples.

Aff action in universities Preferential admissions are allowed if ________________ Must be a strong showing that ___________________ Racial preferences must be ________________

Preferential admissions are allowed if necessary to achieve a diverse student body and diversity is essential to the education. o Must be a strong showing that racial preferences are essential to achieving a diverse class. o Racial preferences must be "holistic" (can be built into an evaluation if every student is evaluated individually in a holistic way) and flexible.

Affirmative action: Preferential admissions and secondary schools_____________though schools may be located ______________

Preferential admissions not allowed for secondary schools (though schools may be located and attendance zones created to maximize diversity).

The Twenty-First Amendment, in addition to ________, specifically gives states the authority to ________________

The Twenty-First Amendment, in addition to repealing prohibition, specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state

Free Exercise of Religion Relgiious Beleif is_protected ________ Relgious conduct is protected ______________.Laws regulating religious conuct because of its religious significance are ___________. regulation of relgogious conduct is allowed when_________. Neutral, generally applicable laws_____________ no right to ______ and no right to_______ Under the Free Exercise Clause, a state's neutral laws of general applicability that have an incidental impact on religious conduct are subject to what kind of review? When can the acc of rel beelief be allowed? Exception: Ministerial exception, campus access Campus access

Protected absolutely (entitled to hold any belief or none at all) 2. Religious Conduct o Protected qualifiedly Laws regulating religious conduct because of its religious significance are unconstitutional (i.e., laws aimed at religion). Neutral regulation of conduct: Neutral, generally applicable laws must be obeyed despite religious objections. • No right to accommodation. • No constitutional right to exemption from neutral, generally applicable regulations of conduct (e.g., Peyote case). subject to rational basis review Wherever the govt has legislative power (army, navy, DC) it can require accomodation of a relgigious belief. States can require acc of rel beelif by states and localaities. • Exception: "Ministerial exception"—in 2012, the Supreme Court held that the First Amendment requires a ministerial exception to employment laws. o Non-discrimination employment laws cannot be applied to ministers o Plaintiff was a commissioned minister working as a teacher in a religious school. The school fired her in a plain violation of the Americans with Disabilities Act. She sought reinstatement as provided by the statute. o The Supreme Court held that the First Amendment precludes claims concerning the employment relationship between a religious instittuion _ and its ministers. o The federal government cannot regulate employment relations between a religious institution and its ministers. o The term "minister" was construed broadly. Campus Access: A state university that allows student groups to meet on campus must allow student religious groups equal access.

public employees who can be fired only for cause must be given opp to be _____________unless _________ If ther eis a sig reason not to keep a person on the job________________________ what is an employee entitled to?

Public employees who can be fired only "for cause" must be given some opportunity to be heard prior to discharge (usually have tenue, typically applies to every public EE with job security), unless there is a significant not to keep the employee on the job. If there is a significant reason not to keep a person on the job, then the discharge can come first with a subsequent hearing that is prompt and provides reinstatement with back pay (fair). An employee is entitled to a notice of termination and a pre-termination opportunity to respond,

Ratioanl basis test is generally easily passed. However, recent Supreme Court cases have made exceptions in the field of_____________. They call it _________ Laws againsr sexual orientatin might be struck down as _______ becuase _______

Rational basis test is generally easily passed. However, recent Supreme Court cases have made exceptions in the field of sexual orientation. Rational basis with teeth Laws against sexual orientation might be struck down as irrational because they are not supported by reasons other than mere prejudice

What does section 1983 prevent? Used to enforee rights based on the _______ and _______ such as __________ What does P need to show to use section 1983 as a remedy for a deprivation of a federally secured right? What is not within the reach of the statute? A state muniicpality is not responsible for private business activities unless _______. How is this shown? What must be there to consittue state action?

Section 1983 is used to enforce rights based on the federal Constitution and federal statutes, such as the prohibition of public sector employment discrimination based on race, color, national origin, sex and religion. To use Section 1983 as a remedy for the deprivation of a federally secured right, a plaintiff must show that the alleged deprivation was committed by a person or entity acting under color of state law. Purely private conduct is not within the reach of the statute. A state municipality is not responsible for private business activities unless it has an excessive entanglement. This is shown by the state action being involved beyond mere normal government actions. the state must act affirmatively to facilitate, encourage, or authorize the activity.

REgulation of the content of expression: Content-based rgulations trigger ____And are usually __________. The rule must be ____________________ Expressive conduct: laws regulating expressive conduct are upheld if they further an _______ interest, that interest is ______, the burden on experession is _______; The key is, if the govt is trying to suppress a ________ then the law will be struckdown; the government is trying to pursue an interest unrelated to the suppression of expression, then the law will be _____________ Vaguness and overbreadth: what are vague laws? what do they violate? Overbeadth is when? these law burden ___________than necessary to protect a _______ interest and thuse ____________ ARe thse seen together? Prior restraints: how are they treated?

Regulation of the Content of Expression Content-based regulations of speech trigger __ss_______ and are usually ___struck down___. The rule must be necessary to achieve a compelling governmental interest. 1. Expressive Conduct (a.k.a. Symbolic Speech) o Laws regulating expressive conduct are upheld if: They further an _important____ interest; That interest is __unrelated_____ to the suppression of expression; and The burden on expression is no greater than necessary. The key: If the government is trying to suppress a particular message, then the law will be struck down; if the government is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld. o Vagueness: Vague laws are ones that give no clear notice of what is prohibited and thus violate due process. o Overbreadth: Overbroad laws are ones that go too far in regulating speech. These laws burden _________substantially_____ more speech than is necessary to protect a __compelling_______ interest and thus violate the First Amendment. Vagueness and overbreadth are almost always seen together on the bar exam. Are especially disfavored and will be struck down even when other forms of regulation might be upheld. o Injunctions against speech are almost impossible to get.

Right to vote- one person, one vote Requires districts of ______and the ______ Examples include: • Exception: __________ governments what is it?

Requires districts of approximately equal size, i.e., approximately the same number of voters in each o Applies whenever you elect representatives by district Ex: U.S. House of Representatives; both houses of a state legislature; local govs when they elect representatives by district. (wards) *Exception:* Special purpose govs—A highly specialized gov (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage or water entitlements)

Timeliness (Ripeness and Mootness) What is ripeness: what does it concern? You must show_______ or ______ What is mootness?: These cases are _______ and are _____ whenever they become moot When can cases become moot? Exception? What do all these cases have in common?

Ripeness concerns prematurity of a case. You must show actual harm or an immediate threat of harm. • Mootness cases are overripe and are dismissed whenever they become moot. Cases can become moot during trial or on appeal. o Exception: Controversies capable of repetition, yet evading review, are not moot, even though they look like it. Such controversies always have an internal time limit (e.g., pregnancies and abortion).

Abortion what is the rule under roe v wade: a woman has the right to terminate her pregnancy until _________________. After that stage, ______________ States can regulate abortion in a variety of ways, but they cannot _________________ Informed consent requirements allowed? 24 hour waiting periods allowed? ? parental notification v. consent: what is allowed and what isn't? narrow exception for requirement that an underage female___________, but requires the judge to give consent if ____________________ spousal consent Government financing of abortion is __________. The govt ___________pay for an abortion.

Roe v. Wade: A woman has a right to terminate her pregnancy until viability (fetus can live outside the womb) of the fetus. After that stage, restrictions can apply so long as there are exceptions to preserve the life and health of the mother. States regulate abortion in a variety of ways, but they cannot impose an undue burden on the woman's right to terminate her pregnancy. • Informed-consent requirements are allowed • 24 hour waiting periods are allowed • Parental notification requirements (for minors) are allowed. • Parental consent requirements are generally not allowed. o Narrow exception for requirement that an underage female get the consent of a parent or a judge, but requires the judge to give consent if the underage female understands the nature of the act. • Spousal consent requirements are not allowed. • Government financing of abortion is not required. The govt never has to pay for an abortion.

Affirmative action: are separate admission tracks or procedures for minority applicants allowed?

Separate admissions tracks or procedures for minority applicants are not allowed.

What is SCOTUs position on poltiical gerrymandering?

SCOTUS had said that Political gerrymandering can violate equal protection (so there is a constitutional question); but he court has found no judicially manageable standards for determining what is and what is not acceptable in the area of drawing districts. (we as cts dont know how to draw districts so the correction of gerrrymandering is beyond our capacity)

Timing of PDP: sometimes hearing can occur after the action so long as:

So long as the hearing is prompt and fair Examples: Termination of disability benefits, disciplinary suspension for a public secondary school.

Timing of PDP hearings: sometimes a hearing must occur __________ the deprivation

Sometimes, a hearing must occur before the deprivation. Examples: Terminating welfare benefits; non-emergency revocations of driver's licenses.

When is affirmative action valid? When is it not valid? Can't just say...

Specific past discrimination: Affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action. General societal discrimination does not justify affirmative action. Not enough to say "our national has had a bad past"

Regulation of Unprotected and less protected Expression: incitement speech is not protected if it is an incitement to _____

Speech is not protected if it is an incitement to immediate violence

state may draw its legislative districts on the basis of ___________ rather than ____________________. How big can the variation be in a state district?

State may draw its legislative districts on the basis of total population rather than eligible or registered voters. Also, a variation of less than 10% in the size of a state legislative district is rebuttably presumed to be a minor deviation that does not constitute a prima facie case for discrimination.

Ballot access restrictions: states can impose reqs for candidates to be listend on a ballot, such as _________________ so long as __________

States can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidates can reasonably comply and there are alternative means.

Spending Power When can cong use this?

The Spending Power includes spending for the general welfare. Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause.

Content-neutral regulations: AKA_____ apply principally in a public forum: what is it? What may be regulated? What are the requirements: 1)must be content________; also must not allow for _____ 2) what must be left open? cannot be a ________ on speech 3) must ________serve a _______State interest. what does it not require?

TPM of Expression • A public forum is a place traditionally reserved for speech activities. These places include_streets, parks, and public sidewalks around public buildings (but not airports). • Only time, place, and manner may be regulated in a public forum. There are three requirements: 1) Content neutral: Must be content neutral on its face and as applied. Also, must not allow executive discretion. 2) Alternative channels of communication must be left open: Time, place, or manner law must be a guideline for speech, not a flat prohibition of speech. 3) Must __narrowly__ serve a _signifcant______ state interest: Under this test, most content-neutral time, place, or manner regulations are upheld. • Does not require a compelling interest

Three big powers on the bar exam: When to pick each power

Tax, Spending Commerce i) Pick the tax power when the law involves a tax; ii) Pick the spending power whenever federal money is spent or disbursed; iii) When in doubt, pick the commerce power.

The Necessary and Proper Clause and enacting laws in conjunctions with a treaty: what is the rule?

The Necessary and Proper Clause enables Congress to enact laws that carry into execution a treaty that's been negotiated by the President and ratified by the Senate in the exercise of their constitutional powers.

Immunities President- has absolute immunity for _________ (what is needed to overcome this?)

The President Has absolute immunity from liability for official acts (broadly construed) (impeachment, conviction and removal are needed to override this immunity)

The USC is a _______ not a ______ for individual rights. What does this mean? Only when the state constitution gives you ________ does a fed question for SCOTUS rise

The U.S. Constitution is a floor, not a ceiling, for individual rights. A state court interpreting a state constitution can always give you more protection. A state can never give you less than the constitution requires. Only when the state constitution gives you less does a FQ for scotus arise

Intergovernmental Immunities fed govt and its instrumentalities (such as a national bank chartered by the federal government) are generally immune from direct state ___________ State can tax fed govt __________ )(for example_____) State are not immune from __________ federal regulation (Examples) States cannot shield its state offier from ___________ Exception: Anti commandeering

The federal government is generally immune from direct state regulation or taxation. However, states can tax indirectly (e.g., taxing the income of federal employees). States are not immune from direct federal regulation (e.g., pollution regulations, employment laws, etc.). • States cannot shield state officers from federal liability for violating federal constitutional rights. • Exception: The anti-commandeering principle covered in Chapter 3. States cannot be forced to carry out federal programs. The federal government can always use the spending power to bribe states to comply.

Congress and taking away citizneship: can it ido it? When can it do it?

The protection of national citizenship in Clause I of the Fourteenth Amendment prevents Congress from taking away a person's citizenship without her consent, unless that citizenship was obtained by fraud or in bad faith.

Indirect federl taxes like duties import and ecise taxes must be _____________ throughtout the US. What does this mean? But keep in mind that

The requirement that indirect federal taxes (i.e., duties, import and excise taxes) must be uniform throughout the United States has been interpreted to mean geographical uniformity only; the product or activity at issue must be identically taxed in every state in which it is found. this does not negate the requirement that states must be taxed by direct taxes in proportion to their populations. (EX: real estate taxes unformaly raised everywhere)

Campaign Finance What is it? What issues does it raise? What is disngusihed? contributions v. direct expenditures: What can be regualteD? any limits? What is the rationale? Independent expenditures v. coordinated expenditures: What is an indep expenditure? can it be resulated? What is a coordinated expenditure? Can it be regualted? direct independent expendiatures protection scope SCOTUS has continuously rejected

The use of money to support a political campaign is political speech and the regulation of that money raises First Amendment issues. • Contributions versus expenditures: o Contributions can be regulated, provided that the limits are not unrasonably low. o Direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated. The rationale is to prevent corruption: a candidate could theoretically act in a certain way in exchange for a larger, direct contribution . • Independent expenditures versus coordinated expenditures: o Independent expenditures (indiv person spends own money to support candidate) cannot be regulated. o A coordinated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated. (supporter spends money as campaign directs) • The constitutional protection of direct independent expenditures applies not only to individuals, but also to corporations, including nonprofits, and unions. • The Supreme Court has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures.

DP Clause and EP clause how many DP clauses How many EP clauses?

There are 2 Due Process Clauses: 1: 25th amendment applies to the federal government and 2: 14th Amendment applies to localities and states One EPC—found in 14th Amendment that applies to localities and states Though no EPC guarantee technically applies to the federal gov, EP concepts are applied to the federal gov via the DPC of the 5th Amendment. Therefore, states and localities have both equal protection and due process; for the federal government, equal protection and due process are called Fifth Amendment Due Process.

fundamental rights: privacy There are all srots of reqs for marraige like _______________ ; but what is unconst? What does that include?

There are all sorts of requirements for marriage (e.g., age or restriction on marrying close relatives), but substantial interference with the marriage—including same-sex marriage—is unconstitutional.

3P Standing what is it? Refers to the question of whether you can Generally ______ Exception? Examples?

Third-party standing" refers to the question of whether you can raise the rights of someone else. Generally, the answer is no, you can only raise your rights. Exception: Parties to an exchange or transaction an raise the rights of other parties to that exchange or transaction. Doctors and women patients getting an abortion seller of beer and people who buy beer

Under the Suspension Clause of Article I, Section 9, Clause 2, a ______________________. Where does this claue apply?

Under the Suspension Clause of Article I, Section 9, Clause 2, a detainee retains the privilege to file a habeas corpus petition unless this privilege is suspended. This clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States. A

Nonpublci forum: what is it? What kind of power does the government have here? What can be regulated here? What is invalid here? Disruption of the functions of the government: what should one do?

This includes all kinds of government property that is not a public forum (e.g., government offices, jails, power plants, military bases, etc.). Here, the government has great power. Basically, any __reasonable__ regulation of speech will be upheld. Viewpoint discrimination is invalid: One clearly unreasonable kind of regulation would be to discriminate based on viewpoint (e.g., between members of different political parties). Disruption of the functions of government: One should go outside to the public sidewalk surrounding the building since that is a public forum.

14th amendment: To be properly remedial, what is require? What does that mean?

To be properly remedial, the legislation must have "congruence" and "proportionality." That is, there has to be a congruence and proportionality. There needs to be a reasonable fit between the remedial law enacted by congress and the underlying constitutional rights defined by SCOTUS.

Quasi-suspect classifications: Gender Triggers what kind of scrutiny? gEnder classifications are almost always_________ When is it aloweD? (rape, draft) But now, most stat rapre laws are __________

Trigger intermediate scrutiny— Gender classifications are almost always invalid (e.g., Oklahoma had a law permitting women to legally drink alcohol at a younger age than men). o Permissible examples of gender classifications: Statutory rape can be gender-specific (historically); and The draft Most stat rape laws are now gender neutral and include M having sex with underage female and vice versa

Legislative Veto Is it constitutinal? When does it arise?

Unconstitutional; It arises when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution If Congress wants to override executive actions, it must change the law (so that the President has an opportunity to veto the new legislation). and it needs to go through both houses Congress cannot evade the President's guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.

What is the younger doctrine? A coutrt will generally not enjoin a pending state criminal case or a state enforcement proceeding in which______________ is involved

Under the Younger doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute. A court will generally not enjoin a pending state criminal case or a state enforcement proceeding in which an especially strong state interest is involved Therefore, until the state hears and decides the criminal case, the action to enjoin the state criminal prosecution will not move forward.

immunity: legislators US Senators and Reps are protected by the _________________ which says that _____________ Official acts of a federal legislator and if it can be introduced into evidence? Example?

United States Senators and Representatives (not state legislators) are protected by the Speech or debate Clause. Senators and Congressmen and their aides cannot be punished in relation to their official acts. • The official acts of a federal legislator cannot be introduced into evidence. (Ex: how they voted).

Executive powers that are exclusive to the president: Veto Power-how long does President have to veto legislation? For what reason can President veto? What can the president not do with the veto? What is required to override the veto?

Veto Power: The President has 10 days to veto legislation. The President can veto for any reason or no reason, but cannot veto specific provisions in the legislation and accept others. (no line item veto) Overriding a veto requires a 2/3 majority vote of each house.

Gerrymandering Racial- what is vote dilution? when is it unconstitutional? voting rights act requires racial gerrymandering to ensure _____________ by creating ______ the rule is that race may be a ___________but not the ____________ Other factors in include _________________ what could be evidence of a predominant racial purpose? Political gerrymandering is when you_______________ can it violate EP? why or why not? Un EP, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless ______________. The district may be able to pass the test if it can be shown that ________________.

Vote Dilution: Drawing districts to scatter minorities so that they are not a critical mass in any one district. If done with a discriminatory purpose, it's unconstitutional. Voting Rights Act: Requires racial gerrymandering to ensure minority success by creating majority-minority districts. • Rule: Race may be a factor in drawing district lines, but not the predominant or only factor. • Other factors include compactness and observing local, political subdivisions. • A bizarrely shaped district may be evidence of a predominant racial purpose. drawing districts to hurt one party) Can, in theory, violate equal protection. In practice, it is never struck down The Supreme Court has not found any judicially manageable standards for implementing that guarantee. A political question (non-justiciable) Under the Equal Protection Clause, e the district plan can survive strict scrutiny. Note that the district may be able to pass the strict scrutiny test if it can be shown that the district was drawn in compliance with federal Voting Rights Act,

Fundamental rights: Voting and Ballot Access Voting is a ______________ right to all citizens_____________ What is unconstitutional? Residency Requirements- time limit? Congress controls residency reqs for ______ States control residency reqs______

Voting is a fundamental right to all citizens age 18 and over. Poll taxes (requirement that you have to pay a tax to vote) are unconstitutional because they burden the fundamental right to vote. Short-term (e.g., 30 days) residency requirements are permitted. Congress controls the residency requirements for presidential elections. States control residency requirements for all other elections.

Fundamental Right to Travel We have a fundamental right to ______ and ________ States can impose reasonable residency requirements for _______________ and ____________. What is the timing usually? What is too long? Exceptions for that time limit? -All residents have a right to_____ -A state cannot have a tax scheme that ____________

We have a fundamental right of interstate travel and settlement. o States can impose reasonable residency requirements for political participation and gov benefits Most are 30-90 days (reas residency reqs) One year is too long for everything except in state tuition and jurisdiction to issue a divorce o All residents have a right to be treated equally. A state cannot have a tax scheme that favors long-term residents over recently arrived residents.

Non-suspect classifications: Wealth When does gov have to waive filing fees? Examples? what filing fees don't need to be waived?

Wealth is not a suspect or quasi-suspect classification Government has to waive filing fees for indigents when charging the fees would deny a fundamental right. o Examples: divorce(because marriage is a fundamental right); transcript for appeal of a criminal conviction (because appellate review is a fundamental right); transcript for appeal of the termination of parental rights. Bankruptcy filing fees do not have to be waived.

What if state court decision unclear what can SCOTUS do? What is the effect of that?

When a state court decision is unclear as to the basis of the decision (i.e., whether its based on the state constitution or the federal constitution), the Supreme Court can review the federal issue. o If the Supreme Court agrees with the state court's decision of federal law, it affirms the decision o If the Supreme Court disagrees with the state court's understanding of the fed issue, it remands the case to state court, so that the state court can reconsider state law

When SS applies, who bears burden of proof?

When strict scrutiny applies, the government bears the burden of proof. The government must show that the interest is compelling and the law is necessary to that interest.

Intermediate scrutiny has only ever been used to decide cases on _______ grounds

While three standards of review are available in both substantive due process and equal protection claims, intermediate scrutiny has only ever been used to decide cases based on equal protection grounds.

Property: when do you have a property interest in your govt job or benefit? What is not enough? Most govt benefits are ______ and hence property.

You have a property interest in your government job or benefit whenever you have a legitimate entitlement to continued enjoyment of the job or benefit. A mere expectation of continued employment or benefit does not suffice. Most government benefits are entitlements and hence property.

Can congress override state laws concerning elections?

Yes, congress can override state laws concerning federal elections.

Cna congress create lower federal courts?

Yes; under Article III Section I.

Congressional Limits on the Executive: impeachment Who does impeachment apply to? Examples? It is an ______ passed by the _____ requiring a _____ ovte. What is the rpocess?What is required for conviction? what is the result of impeachment and conviction? What other penalities apply?

a. Impeachment Applies to executive officers (e.g., President, Vice President, cabinet officers, federal judges) An accusation passed by the House of Representatives requiring a majority vote. Once impeached, the person is tried in the Senate. Conviction requires a 2/3 vote of the Senate. Impeachment and conviction lead to removal from office. No other penalty applies.

Legislative Power under Article I What can fed govt do?

anything it likes, as long as it doesn't violate individual rights The federal government does not have a general police power (any kind of government act that serves the public good) unlike the states

corporations and first amdt rights

citizens united: Corporations have the same First Amendment right to speak as individuals.

Dormant Commerce Clause what does it do? Why is it important? What does "dormant" mean?

defines what the commerce clause means in the absence of federal regulation More important than Privileges and Immunities of Article IV because it protects out-of-state corporations as well as out-of-state individuals. "Dormant" describes what the Commerce Clause means in the absence of federal regulation (when the federal commerce power is unexercised).

When does the fiest amdt shiled the media?

he First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern.

The Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home, but this right is not ______ Federal and state governments may impose conditions and qualifications on ______________ and may prohibit poseesion of firearms by ______________ and ___________

he Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home, but this right is not unlimited. Federal and state governments may impose conditions and qualifications on the commercial sale of arms, and may prohibit the possession of firearms by felons and the mentally ill.

The Property Clause of Article IV, gives power to __________

his power includes not only the power to dispose of property owned by the United States and to make incidental rules regarding its use, but also the power to protect the property.

When does a group have standing?

in order for a group to have standing, it must show that individuals within the group are injured, the claim is associated with the purpose/basis of the group, and that there is no reason requiring individual action by the injured party themselves.

A judge'es refusal to recuse herself can create _____ issues

judge's refusal to recuse herself likely violated the Due Process Clause of the Fourteenth Amendment

Ex Post Facto Laws It is ____________ to expand _____________ retroactively, either by ____________ or ____________ only applies to _______________________ SOL: A statute of limitations, which addresses ______rights, is _________in nature. Consequently, unless a change to a statute of limitations violates a _________ the statute must simply meet the _________ standard of review.

nconstitutional to expand criminal liability retroactively__________, either by creating a new crime that applies retroactively to past conduct or by ______increasing____ the penalty for past conduct. Only applies to criminal statutes A statute of limitations, which addresses procedural rights, is remedial in nature. Consequently, unless a change to a statute of limitations violates a fundamental right or deals with a suspect classification, the statute must simply meet the rational basis standard of review.

What are the suspect classifications? (3) They trigger what type of scrutiny?

race, ethnicity, national origin and they trigger SS

Affirmative Action what is it?_____ Classification an effort to ________ triggers what type of scrutiny?

racial classification; an effort to benefit a racial or ethnic minority SS

Under Article I, Section 8, Clause 17 of the U.S. Constitution, also known as the Enclave Clause, Congress has the _____________________ powers over the District of Columbia that a state enjoys over __________ Among those powers is _____________.

nder Article I, Section 8, Clause 17 of the U.S. Constitution, also known as the Enclave Clause, Congress has the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries. Among those powers is the power to tax or not to tax income earned within its boundaries.

The Commerce Power Almost anything _____ What can congress regulate with commerce? How is substantial effect judged? Non-economic non-commercial activity, Congress can regulate intrastate actions only by __________ In other words, subst effect on IC when its economic and commerciaal is ______ and basically ___________ for non econ and non comm acitvity, need to ______

o Almost anything can be regulated as interstate commerce. o Congress can regulate: 1: The channels of interstate commerce (highways, seaways, airways, etc.); 2: The instrumentalities of interstate commerce (cars, trucks, railroads, ships, etc.); and 3: Intrastate (and interstate) activity (economic or commercial) that has a substantial effect_on interstate commerce. • Substantial effect is judged in the aggregate The question is: whether the aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce, and the answer is almost always yes for commercial and economic activity. • Not within the Commerce Clause: For non-economic, non-commercial activity, Congress can regulate intrastate actions only by actually demonstrating a substantial effect on interstate commerce (substantial effect is presumed for economic or commercial activity). Thus, Congress cannot regulate purely intrastate, non-commercial, non-economic activity for which a substantial effect on interstate commerce has not been shown. (MUST PROVE IT) In other words substantial effect on IC when its economic and commercial is easy and basically presumed for non econ and non commerical activity, need to prove it

Suspect classifications: Alienage Classifications based upon ________________are generally ___________classifications that require a _____________ interst, but two important exceptions to strict scrutiny for alienage apply: 1) Federal Govt: cong has plenary power over____________. Federal classifications based on U.S. citizenship do not ___________________. These are valid unless _________ 2) state and local ___________________ These are jobs that____________; What are some examples? Strtes and localities can require citizenship for ____________. States and local cannot require citizenship for _______________ Generally, a state law that discriminates against aliens is subject to ____under the _________and will be s___________ Const rights of illegal aliens : Undocumented aliens ________ Even so, stats cannot deny ______ States and localities may legislate with regard to alienage if ______

o Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest, but two important exceptions to strict scrutiny for alienage apply: 1: Federal gov - Congress has plenary power over citizenship, immigration, and naturalization. • Federal classifications based on U.S. citizenship do not trigger strict scrutiny. • Federal classifications are valid unless arbitrary and unreasonable 2: State and local participation in government functions • These are jobs that have a particular relevance to the role of government and non U.S. citizens can be barred from these jobs. • States and localities may require U.S. citizenship for participation in government functions, including voting, serving on a jury, and working in any kind of government law enforcement position (including probation and parole officers), or as a public school teacher. o Rule: States and localities cannot require U.S. citizenship for access to private employment or for government benefits Generally, a state law that discriminates against aliens is subject to strict scrutiny under the Equal Protection Clause and will be struck down. Constitutional rights of illegal aliens—Plyler v. Doe: Undocumented aliens are not a suspect classification. Even so, states cannot deny undocumented children public education. may legislate with regard to alienage if Congress has explicitly authorized it.

What are the remedies? Past v. future injuries Past injury does not ___________ to seek _________ for future _________ To get an injunction, you must show _____

o If the injury is in the past, the remedy is damages. o If future injury is threatened, the remedy is an injunction o Past injury does not give automatic standing to seek an injunction for future injury. To get an injunction, you must show that it will happen again.

Standards of review for Substantive DP and Equal Protection: Rational Basis -what is the standard? -who bears the burden of proof? -how high is the burden? -applies to?

o Is the law rationally related to a legitimate interest? The challenger bears the burden of proof. o Low burden of proof. (law only needs to be not insane) o Applies to all other cases (residual test)

Ad Valorem Property Taxes (Value baaed prop taxes) Levied on ________ Distinguish between commodities and instrumentalities State tax all commodties within their borders on a ___________ called ___________ but not goods ________. What is the rule? When are taxes due? When are they not due? instrumentalities are ___________; _________ of tax liability among states with a ______ too the instrumentlaity. Each state in which an ______ is used can tax ___________ Only these taxes are subject to the

o Levied on personal property o Distinguish between two kinds of personal property because they are taxed differently: Commodities are the goods that move from state to state. • States tax all commodities within their borders on a specified date (called tax day), but not goods that are merely in transit—the commodities have to come to rest in the state. • Rule: Pay the full tax to every state where goods are stopped for a business on tax day. No taxes are due where they are merely in transit or passing through Instrumentalities are the transportation equipment that moves commodities (railroads, trucks, airplanes, etc.) • Fair apportionment of tax liability among states with a substantial nexus to the instrumentality. Each state in which an instrumentality is used can tax the value of that instrumentality. Apportionment requirement

Procedural due process This is the right to a _____ and whearing when __________ Questions to ask?

the right to notice and a hearing 1) Is life, liberty, or property being taken? 2) if the l,l,p is being taken, what process is due?

What are some fund rights that almost always come up under EP? just list

right to travel right to vote (one person one vote Gerrymandering (racial and poltiical)

Fundamental rights trigger what test? _________ under both _______

strict scrutiny under both DP and EP

Political Questions a non-justiciable quesion when _____________ What are some factors that make it non-justiciable? Committed to_________; no manageable _________

• A non-justiciable question when it is inappropriate for judicial resolution o The issue is committed to another branch of government for decision; o There are no manageable standards for adjudication. •

Federal and State Powers Even though fed powers are superior, most fed laws are ________ with those of the states, which means that: On most topics, both Cong and states have _____ When there is a conflict, Some powers are exclusively federal like the power to coin__________ and power over ______ relations

• Even though federal powers are superior, most federal powers are concurrent with those of the states. Most things congress regulates, states can also regulate On most topics, both Congress and the states have regulatory powers. If there is a conflict, Congress wins. • Some powers are exclusively federal. They include the power over foreign relations and the power to coin money.

Preemption Federal law _______ state law State law is not preempted simple because ________. There must be a ___________. If you can comply with both state and feera law__________ When congress Preempts the field, what does it mena? How common is this?

• Federal law preempts (overrides) inconsistent state law. • State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict. (If you can comply with both, it is not preempted) • Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Speech by Government EEs Generl rule: Govt ees (ordinary run of the mill) generally cannot be hired or fired based on ___________ Can be fired for ____________ Excepiton: When a government employee contends that his rights under the Free Speech Clause of the First Amendment, as made applicable to state and local government action through the Fourteenth Amendment, have been violated by his employer, the employee must show ________________

• General rule: Government employees (oridinary, run of the mill) generally cannot be hired or fired based on political party, political phislosophy, or any act of expression. o Can be fired for disrupting the workplace or not doing their jobs. • Exception: This general rule does not apply to confidential advisors or policy-making employees (e.g., the President's cabinet officers). When a government employee contends that his rights under the Free Speech Clause of the First Amendment, as made applicable to state and local government action through the Fourteenth Amendment, have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern.

What are the limitations on Judicial Power? 11th Amdt and state sov immunity wha is rule?

• Limitations: 11th Amendment and State Sovereign Immunity A major exception to the judicial power is created by the 11th Amendment and by the preexisting concept of state sovereign immunity. *Rule:* You can'y sue a state for money damages in either state or federal court unless the state consents or the U.S. Congress expressly says so to enforce 14th Amendment rights

Takings: private property shall not be __________ without ________ what is public use?what is the standard? This includes taking private property to resell to another private owner for the purpose of _________ What is just compensation? when is it calculated? Taking v. regulation? If there is a taking_____ required. /if it's a mere regulation, then ___________ even if ____________ Economic impact: What is the effect of adverse evcon impact on a taking? What is the key question? Zoning? Regulatory taking: what is it? what are the factors? (1)___ impact 2) extent to which ______-3) ______ of the regulation Development Permits

• Private property shall not be taken for public use without just compensation. o Public use—basically anything the government wants to do with the property. It need only be rationally related to a conceivable public purpose. This includes taking private property to resell to another private owner for purposes of economic development. o Just compensation—FMV at the time of the taking. o Taking versus regulation—If there is a taking of property, compensation is required; if there is a mere regulation_on property, compensation is generally not required, even if the regulation reduces the value of the property. o Economic impact—The adverse economic impact of the gov's action does not necessarily mean there has been a taking (e.g., a new prison built next door to a beautiful, countryside home). Many regulations can dramatically affect the value of property but that does not trigger a right to compensation. o Physical occupation—This is the key question. If the government physically occupies a private owner's property, then a taking has occurred and it owes just compensation. If the government physically occupies only a tiny portion of your property, it is still a taking. No physical occupation—Generally, no physical occupation means that no taking has occurred Zoning—Not a taking and no compensation is required, so long as the zoning advances legitimate interests and does not extinguish a fundamental attribute of ownership. • Regulatory Taking—A zoning regulation can be considered a taking when it leaves no economically viable use for the property (rare). (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the owner's reasonable, investment-backed expectations regarding his use of the property; and (3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner's essential attributes of property ownership, such as the right to exclude others from the property. • Development permits—Development is often conditioned on "concessions" by the developer, such as building an access road or donating land to a park. Such exaction's are valid so long as they can be seen as offsetting the adverse impact of the development. Generally ok to extract concessions from the developer

State Action 13th amdt (outlawed______________) applies directly to _________ but it is ___________ How do other indiv rights apply to states? What does the 14ht amdt require? Virtually, all individual rights are enforced through _________

• The 13th Amendment (outlawing slavery and involuntary servitude) applies directly to private parties and individuals, but it is narrow in its focus. • Other individual rights apply to states and localities through the 14th Amendment, which requires state action. Virtually all indiv rights enforced through the 14th amendment

Regulation of Unprotected and less protected Expression: Government speech First amdt resitrcition ________apply to the govt as a speaker Govt as a speaker is free to _____________ Govt and monuments donated by private person: what can it do? specialty license plates?

• The First Amendment restrictions basically do not apply to the government as a speaker. • Government as a speaker is free to express a point of view (e.g., advertising the military). • The government does not have to accept all monuments donated by a private person simply because it accepts one—when the government is controlling the message, it is entitled to say what it wants. specialty license plates bearing messages requested by purchasers are still govtal speech, so the govt can refuse to usse plates that would be offensice to other citizens.