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CONSTITUTIONAL LAW 2 Taxing/spending power: Congress can tax/spend for general welfare. Commerce Power: Congress may regulate the channels of interstate commerce (highways, internet, etc.); instrumentalities of IC (phones, trucks); and persons or things in IC (stock, insurance, power lines, cattle, people). o Economic activities with substantial effect on IC: Look to aggregate effect. eg: Even small amounts of marijuana for medicinal use can be regulated because pot travels in IC in the aggregate. o Non-economic activities effect on IC: Substantial effect cant be base on cumulative impact. U.S. v. Morrison: not every state provided findings of effect of DV & SA, but law applied nationwide, so no go. 10th Amendment as a limit on Congressional powers: All powers not granted to the US, nor prohibited to the states, are reserved to the state or the people. Congress cant compel state regulatory or legislative action, but can prohibit harmful commercial activity by state governments (not affirmative duty, just bar on bad practices). o Conditioning grants to states to induce behavior: Congress can put strings on grants, so long as conditions are expressly stated and relate to the purpose of the spending program (e.g.: 21 year old drinking age). 5 of the 14th Am. Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must NARROWLY TAILORED such that they are PROPORTIONAL and CONGRUENT to remedying constitutional violations. No limit exists on Congress ability to delegate legislative power to agencies. Legislative vetoes (congressional resolution to overturn an agency rule) and line-item vetoes (president vetoing only part of a bill) are unconstitutional. For Congress to act, there must always be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). Congress may not delegate executive power to itself or its officers.
B. DELEGATION OF POWERS
B. DOMESTIC AFFAIRS
CONSTITUTIONAL LAW 3 EXECUTIVE PRIVILEGE OF PRESIDENT: For presidential papers and conversations, but must yield to other overriding important government interests. PARDON POWER: President can pardon those accused or convicted of federal crimes. Cant pardon someone who was impeached. Can only pardon as to criminal liability, not as to civil liability.
IV. FEDERALISM
Limits what state and local government can do because of the existence of federal government and other states. Supremacy Clause of Art. VI: Constitution, and laws and treaties made pursuant to it, are supreme law of the land. Types of preemption: o Express preemption: Federal statutes that say that state and local laws in this area are invalid. o Implied preemption: Conflict, obstacle/interference, and field. Intergovernmental Immunity: States may not tax or regulate federal government activity, or burden federal activity, e.g., states cant apply their stricter state environmental laws to the federal government. Dormant commerce clause (negative implications of commerce clause): State and local laws are unconstitutional if they place an undue burden on IC, i.e., prevents states and local governments from interfering with IC. o Congressional approval of a state or local law means the commerce clause is no longer dormant, and with such approval, state law wont be found unconstitutional. Privileges and immunities clause of Article IV: No state may deprive citizens of other states of the privileges and immunities it accords its own citizens. Anti-discrimination provision. o Market participant exception: State or local government may prefer its own citizens in receiving benefits from govt programs or in dealing with govt businesses. e.g.: In-state tuition benefit, or govt acting as biz. o Distinguish - Privilege and immunities clause of the 14th Amendment: (wrong answer unless involves the right to travel.) No state shall deprive any citizen of the privileges and immunities of being a US citizen. Does the state law discriminate against out-of-staters? o IF NO, Privileges and immunities clause of Article IV doesnt apply. DCC violated if the laws burdens exceed its benefits. e.g.: IL required a kind of mud guard different from the mud guards used by every other state on big trucks. Too much of a burden. o IF YES, Privileges and immunities clause of Art. IV violated if the state law interferes with civil liberties or important economic activities (i.e., ability to earn a living) unless it is necessary to achieve IMPORTANT government purpose and the discrimination is NECESSARY (no less discriminatory alternative available. Note: no protection for corps and aliens. DCC violated if law burdens IC unless NECESSARY to achieve important govt purpose, i.e., no less discriminatory alternative. Only case was Maine v. Taylor the state was worried that imported fish would bring diseases to their fish, so valid to protect environment States may not use their tax systems to help in-state businesses. Must be substantial nexus to state to tax an activity. Taxation of interstate business must be fairly apportioned. e.g.: IC trucking company can only be subject to % of revenue earned in that state. Courts in one state must give full faith and credit to judgments of courts in another state, so long as all of the following requirements are met: (1) court had jurisdiction over parties and subject matter; (2) judgment on merits; and (3) judgment is final.
A. PREEMPTION
B. THE DORMANT COMMERCE CLAUSE AND PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV
CONSTITUTIONAL LAW 4
C. LEVELS OF SCRUTINY
CONSTITUTIONAL LAW 5 o Failure to protect doesnt deny DP, unless person is in govt custody or govt created the danger. What procedures are required if deprivation of DP? Balancing test: (1) importance of interest to individual; (2) ability of addl procedures to increase accuracy of fact-finding; and (3) govt interest (efficiency, saving money). Laws affecting economic rights are only subjected to rational basis review. Minimal protection. TAKINGS CLAUSE: The government may take private property for public use if it provides just compensation. o Is there a taking? Possessory taking: Government confiscation of physical occupation of property. Regulatory taking: Regulation (either new or in existence when property was acquired) leaves no reasonably economically viable use of the property. Cant just be a reduction in a value. Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise, its a regulatory taking. Temporary denial of use of property is not a taking so long as govt action is reasonable. o Is it for public use? Govt only needs reasonable belief that the taking will benefit the public. o Is just compensation paid? Measured in terms of the loss to the owner using reasonable market terms. CONTRACTS CLAUSE. Art. I, 10. No state (doesnt apply to feds) shall impair the obligations of existing Ks. o Legislation must not SUBSTANTIALLY IMPAIR a partys rights under an existing K unless the law a reasonably and narrowly tailored means of promoting an IMPORTANT & LEGITIMATE public interest. o State or local interference with government Ks must meet strict scrutiny. o Retroactive civil liability only need meet a rational basis test. STRICT SCRUTINY - Rights to: Marry; procreate; custody of ones children (cant terminate custody unless compelling reason, but the state can create an irrebuttable presumption that a married womans husband is the father of her children); keep your family together; control upbringing of your children (can bar grandparent visits); and purchase & use contraceptives. UNDUE BURDEN TEST - Right to abortion: Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they dont create an UNDUE BURDEN on the ability to obtain abortions. After viability, states may prohibit abortion unless necessary to protect womans life or health. o Not undue burden: 24 hour waiting period; requiring licensed physician to perform abortion; prohibition of partial birth abortions. o Undue burden: Spousal consent and notification laws. o Government has no duty to subsidize abortions or provide abortions in public hospitals. o Parental notice and consent laws for unmarried minors: Acceptable so long as the state creates an alternative procedure where a minor can obtain abortion by going before a judge who can approve the abortion by finding it would be in minors best interests or that she is mature enough to decide for herself. UNDETERMINED LEVEL: Right to engage in private consensual homosexual activity. No level of scrutiny articulated in Lawrence v. Texas. CLEAR AND CONVINCING EVIDENCE - Right to refuse medical treatment. Per Cruzan, o competent adults have the right to refuse medical treatment, even life-saving medical treatment; o state may require clear and convincing evidence that a person wanted treatment terminated before its end; o AND a state may prevent family members from terminating treatment for another. NO PRIVACY RIGHT: There is not a constitutional right to physician-assisted suicide.
C. ECONOMIC LIBERTIES
CONSTITUTIONAL LAW 6
F. THE FUNDAMENTAL RIGHT TO TRAVEL OF THE PRIVILEGES & IMMUNITIES CLAUSE OF THE 14TH AM.
Strict scrutiny for laws denying access to move across states or creating durational residency requirements. o For voting, 50 days is the maximum allowable durational residency requirement. Rational basis for restrictions on foreign travel. International travel isnt a fundamental right. 15th Am says right to vote shall not be infringed upon on the basis of race. Also covered under EP. STRICT SCRUTINY for laws that deny right to vote, or that draw district lines to favor or disadvantage some minority. Unconstitutional to require poll tax, property ownership (except in water district elections). o Regulations of the electoral process to prevent fraud only need be on balance desirable, e.g., show ID. One person one vote: All state & local elections. In multi-district elections, districts must be same in population. At-large elections (where every voter votes for every councilmember) are constitutional unless there is proof of a discriminatory purpose. Counting uncounted votes without preset standards in a presidential election violates EP.
CONSTITUTIONAL LAW 7 Prior restraint as judicial order to stop speech before it occurs: STRICT SCRUTINY. o Must show: (1) Special societal harm if speech isnt stopped before it starts; (2) narrowly drawn, reasonable, and definite standards; (3) injunction promptly sought; and (4) prompt and final determination of the validity of the restraint. Proper order must be obeyed until vacated or challenge will be barred. Prior restraint as licensing or permit system that stops speech before it occurs: STRICT SCRUTINY. o Must show: (1) important reason for license/permit; (2) clear criteria, almost no discretion to the licensing authority, AND (3) procedural safeguards (prompt review of applications, judicial review of denials). Unconstitutional Vagueness: Reasonable person cannot tell what speech is prohibited. Violates DP. Overbreadth: A law regulates substantially more speech than what the Constitution allows to be regulated. Will usually be found facially invalid, hence cant be enforced against anyone. Alternatively, court will develop a limiting construction to remove the threat to constitutionally protected expression. Scope of speech: Freedom to speak includes the freedom not to speak. Includes symbolic speech. o Symbolic speech: Govt can regulate symbolic speech if there is an important interest unrelated to suppression of the message and effect is no greater than necessary to achieve the governments purpose. Constitutionally protected symbolic speech: Flag burning; cross burning (in the woods, but not on the lawn of an African American family where there was intent to threaten). Unprotected speech symbolic speech: Draft card burning (govt has an interest in having men keep their draft cards in case an emergency mobilization is needed). o Election campaign contribution & spending limits: Corp & individual expenditure limits are unconst. Contribution limits to individual candidates are constitutional. Corps cant give directly to one candidate. o Anonymous speech is constitutionally protected. Incitement of Illegal Activity: Unprotected. o Test: (1) substantial likelihood of imminent illegality, AND (2) the speech is directed at causing imminent illegal activity. Obscenity and sexually-oriented speech: Some protection. o 3-Part Test (Miller v. California): (1) Material appeals to the prurient (that which excites morbidly lustful and lascivious thoughts) interest by contemporary community standards; (2) patently offensive under the laws definition of obsenity; AND (3) taken as a whole, lacks serious redeeming artistic, literary, political, or scientific value, based on a national standard. o Adult bookstores and movie theaters: Govt may use zoning ordinances to regulate location (preserving character of neighborhood and home values), but cannot ban them altogether. o Child porn: The government may ban child pornography even if its not obscene. o Private possession of obscene material: Protected, unless its child porn, which can be banned. Profane and indecent language: Protected. o Exceptions: Broadcast media (not cable); speech in schools. Commercial speech: INTERMEDIATE SCRUTINY, i.e., NARROWLY TAILORED to DIRECTLY ADVANCE a SUBSTANTIAL GOVT INTEREST. o Exception: No protection for advertising that is false, deceptive, or that promotes illegal activity. Defamation & privacy: See torts outline. Speech by government employees on the job in the performance of their duties: NO PROTECTION. Public forums, like sidewalks and parks: Speech can only be regulated if (1) subject-matter and viewpoint neutral; and (2) regulation is time, place, and manner restriction that serves an important government purpose and leaves open adequate alternative locations for communication. o Need not be least restrictive alternative; just narrowly tailored. Permit fees must be non-discretionary.
CONSTITUTIONAL LAW 8 Limited public forums, like a school: Govt properties that govt could close to speech, but has voluntarily opened to speech. Once opened, govt has created a limited public forum and the same rules apply as for public forums. Non-public forums, like military bases, areas outside jails, city buses, sidewalks on USPS property, airports: Govt can regulate speech in a non-public forum so long as the regulation is viewpoint neutral and reasonable. Private property, like private shopping centers: Not constitutionally protected, can be totally regulated.