CONSTITUTIONAL LAW

Justiciability doctrines

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Whether a case is justiciable (federal court may address it depends on whether theres a case or controversy. No advisory opinions. tandin!: is proper party to bring a matter to court for adjudicati on if he alleges and proves injury ( must show that she has been or will be directly and personally injured by the unlawful governme nt action which affects her ri!hts under "onstitution or federal law. #njury need not be economic.$% causation (causal connection between injury and conduct complained of$% and redressability (decision in s favor must be capable of eliminatin g her grievance$ . &enerally no 'rd party standing

except if theres close relationshi p between and injured party, injured party unlikely to be able to assert his own rights (such as criminal s on behalf of prospectiv e jurors about discriminatio n$% or associational standin!. No !enerali(ed !rievances% e)cept that ta)payers have standin! to challen!e !overnment e)penditure as violations of the *stablishmen t "lause (but not !overnment !rants of property to reli!ious institutions$. +ipeness: isnt entitled to review of statute or regulation before its enforceme nt (i e may not obtain declarator y judgment! unless will suffer some harm or immediate threat of harm
-ootness: must present

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live controversy "f events that happen after filin! end .s injury% case is dismissed as

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moot. *)ceptions / wron! capable of repetition but evadin! review (e.!.% abortion cases$% voluntary cessation by which is free to resume at any time% class action suits (as lon! as one member has live claim$.

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1olitical 2uestion3 will not be heard by federal courts. *)amples / republican form of !overnment clause% presidents conduct of forei!n policy% impeachment and removal process.

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Supreme Court and lower federal court review 1. "456 review3 2 ways cases can come to "456 3 (1$ writ of certiorari7 or (2$ appeal (rare$.

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2.

8inal jud!ment rule3 "456 can only hear cases after final jud!ment of the hi!hest state court% of a 6 court of appeals% or of

three9jud!e federal district court. #ndependent state !round3 for "456 review% there must not be an independent and ade2uate state law !round of decision that would ma:e "456 decision irrelevant% even if federal issues are involved. tate law !rounds are ade2uate if theyre fully dispositive of the case and decision is not based on federal case interpretation s of identical federal provisions. 11th ;mendment3 federal and state courts cant hear suits a!ainst state !overnments under 11th; principle of soverei!n immunity. *)ceptions / e)press waiver by state% under <0 of 1,th;% federal !overnment may sue state. uits a!ainst state officers3 ;llowed. -ay be sued for injunctive relief or for money dama!es to be paid out of their own poc:ets but cannot be sued if state treasury will be payin! retroactive dama!es.

Legislative Power (Article 1)

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2.

5here must be an e)press or implied power for every "on!ressiona l act. 1olice power3 no !eneral federal police power. 4nly state and local !overnments have !eneral police power. 8ederal !overnment has police power over military% #ndian reservations% federal lands% and =" (-.#.>.=.$. Necessary and proper clause3 "on!ress may adopt all laws necessary and proper to e)ecute any power !ranted to any branch of the federal !overnment. -ust be lin:ed with another federal power% cannot stand alone. 5a)in! and spendin! power3 "on!ress may 5? for !eneral welfare. "ommerce power3 "on!ress may re!ulate channels of interstate commerce% instrumentali ties of interstate commerce% and activities that have a

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substantial effect on interstate commerce.

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War and related powers3 "on!ress has power to declare war% raise and support armies% and provide for and maintain a navy. *conomic re!ulation durin! war and in postwar period to remedy wartime disruptions o:. "on!ress can ma:e rules for !overnment and re!ulation of armed forces. -ilitary courts have jurisdiction over all offenses committed by active servicememb ers both at time of offense and when char!ed. 1roperty power3 "on!ress has power to dispose of and ma:e rules for territories and other properties of 6 . No e)press limitation on power to dispose of property% federal ta:in!s (eminent domain$ must be for

purpose of effectuatin! an enumerated power under some other "onstitution provision.

B.

1Cth ;mendment / all powers not !ranted to the federal !overnment% nor prohibited to the states% are reserved to the states or the people. "on!ress may not compel state re!ulatory or le!islative action (but can induce by puttin! certain strin!s on !rants$. "on!ress may prohibit harmful commercial activity by state !overnments. <0 of the 1,th amendment / "on!ress may not create new ri!hts or e)pand the scope of ri!hts under <0. -ay only prevent or remedy violations of ri!hts reco!ni(ed by the courts. powers3 no limit on "on!resss ability to dele!ate le!islative power to e)ecutive a!encies or judiciary. -ust set

D.

A.

1C. =ele!ation of

intelli!ible standards to !uide e)ercise of discretion. "on!ress may not dele!ate e)ecutive power to itself or its officers. >e!islative vetoes and line item vetoes are unconstitutio nal as violations of the presentment clause and bicameralism . E ecutive Power (Article !!) 1. 8orei!n policy

b.

a.

5reaties 3 ne!otiat ed by 1reside nt and ratified by enate (2E'rd

vote$. 5reaties prevail over conflicti n! state law. #f federal law conflict s% more recent one wins. #f treaty conflict s with "onstitu tion% its invalid. *)ecuti ve a!reeme nts3 effectiv e when si!ned by 1reside nt and head of forei!n country. No senate approva l re2uired . "an be for any purpose . *;s

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prevail over conflictin! state laws but never over conflictin! federal laws or the "onstitution. c. "ommander9in9chief3 has broad power to use 6 troops in forei!n countries (political 2uestion$. No power to declare war. "on!ress may limit 1resident in its military appropriations every 2 years. =omestic affairs

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a.

;ppointment and removal3 only 1resident appoints ambassadors% federal jud!es% and officers of 6 . "on!ress may vest appointment power of inferior officers in 1resident% heads of departments% or lower federal courts. "on!ress cant !ive itself appointment power. 1resident may fire any e)ecutive officer. "on!ress may limit to !ood cause removal from some e)ecutive offices but may not deny removal. #mpeachment and removal3 1resident% Fice9 1resident% federal jud!es% and officers of 6 can be impeached and removed for treason or hi!h crimes and misdemeanors. Gouse of +epresentatives has sole power of impeachment (majority vote re2uired$. enate then holds a trial to remove (2E' vote re2uired$. #mmunity3 1resident has absolute immunity to civil suits for money dama!es for actions while in office (no immunity while in office for actions prior to ta:in! office$. *)ecutive privile!e3 1resident has privile!e to :eep certain communications secret. ;pplies to presidential papers and conversations% but must yield to important !overnment interests. 1ardon power3 1resident may pardon those accused or convicted of federal crimes. *)ception / cannot pardon crime underlyin! an impeachment. "annot pardon for impeachment or civil contempt. Feto3 if 1resident vetoes act of "on!ress% act may still become law if veto is overridden by 2E' rd vote of Gouse and enate. 1$ 1oc:et veto3 1resident has 1C days to e)ercise veto power. #f he fails to act% bill is automatically vetoed if "on!ress is not in session. #f "on!ress is in session% the bill becomes law.

commerce% it violates dormant commerce clause if burdens e)ceed benefits. ;nalysis if law =4* discriminate a!ainst out9of9 staters3 (1$ if law burdens interstate commerce% violates dormant commerce clause unless it is necessary to achieve an important !overnment purpose. 2 e)ceptions / "on!ress approved or state is actin! as mar:et participant (state is sellin! or hirin! labor% etc$. (2$ if law discriminates with respect to ability to earn a livelihood% it violates ;rticle #F 1#" unless its necessary to achieve an important !overnment purpose / the law must discriminate a!ainst out9of9staters only and the discrimination must be on civil liberties or important economic activities. "orporationsEaliens cannot use ;rticle #F 1#". 8ull faith and credit clause3 if jud!ment is entitled to full faith and credit% must be reco!ni(ed in sister states. #nterstate compact clause3 concerns a!reements between states. #f a!reement increases states power at e)pense of federal power% con!ressional approval is re2uired.

@. A.

b.

"ederalism # State ta ation of interstate commerce

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c.

&eneral rules3 tates may not use their ta) systems to help in9state business. tate may only ta) activities if there is a substantial ne)us to the state. tate ta)ation of interstate businesses must be fairly apportioned to the activity related to that state.

d.

Protection of individual liberties # state action

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&enerally3 state action is re2uired. 1rivate conduct need not comply with the constitution. "on!ress may apply constitutional norms to private conduct by statute3 under 1'th; and related laws re3 private racial discrimination and under the commerce power. "on!ress may not use <0 of 1,th; to re!ulate private behavior. 1ublic function e)ception3 "onstitution applies if private entity is performin! tas: that is traditionally e)clusively done by the !overnment (e.!.% runnin! a town% holdin! elections$. Narrow. *ntan!lement e)ceptions3 "onstitution applies if !overnment affirmatively authori(es% encoura!es% or facilitates unconstitutional activity. *ither !overnment must stop what it is doin! or private entity must comply with "onstitution.

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"ederalism # $ormant Commerce Clause and Privileges and !mmunities Clause

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=ormant "ommerce "lauseENe!ative "ommerce "lause3 ne!ative implications of the commerce clause. tate and local laws are unconstitutional if they place undue burden on interstate commerce (inferred from "on!resss commerce power$ or favor local economic interests. ;rticle #F 1rivile!es and #mmunities "lause3 no state may deprive citi(ens of other states of the privile!es and immunities it affords its own citi(ens. ;nti9 discriminatory provision. "orporations and aliens not protected. 1,th; 1rivile!es and #mmunities "lause / never the ri!ht answer unless 2uestion involves ri!ht to travel (was e)tremely limited by slau!hterhouse cases$. #f law does N45 discriminate a!ainst out9of9staters% ;rticle #F 1#" doesnt apply. #f law burdens interstate

Protection of individual liberties # levels of scrutiny

1.

+ational basis test3 law must be rationally related to a le!itimate !overnment purpose. -eans must be rational to obtain !oal. ome conceivable le!itimate purpose must e)ist (court wont just loo: at actual purpose$. "hallen!er has burden of proof. #ntermediate scrutiny3 law must be substantially related to an important !overnment purpose. -ore than just a le!itimate purpose. "ourts loo: only to actual purpose. &overnment usually has burden of proof. ;pplies to 2uasi9suspect classifications. trict scrutiny3 law must be necessary to achieve a compellin! !overnment purpose. >aw must be vital and the means necessary. "ourts loo: only to actual purpose. &overnment has burden of proof to show no less restrictive method could achieve the objective. ;pplies

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to fundamental ri!hts (interstate travel% privacy% votin!% and 1st; ri!hts$ and suspect classifications. 5here must be no less burdensome alternative to achieve !overnments !oal. Procedural due process

A. B.

1.

8air process (i.e. notice and hearin!$ is re2uired for !overnment a!ency to individually ta:e a persons life% liberty% or property. 4nly intentional (not ne!li!ent$ deprivation violates =1". Gas there been a deprivation of life% liberty% or propertyH =eprivation of liberty occurs if there is a loss of si!nificant freedom provided by constitution or statute. =eprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. *ntitlement e)ists when theres reasonable e)pectation of continued receipt of a benefit. &overnment ne!li!ence not sufficient for deprivation of due process / must be intentional !overnment action or at least rec:less action. 8ailure to protect from private harms !enerally doesnt deny =1. What procedures are re2uiredH Ialance three thin!s to determine whether procedures are re2uired3 (1$ importance of the interest to the individual% (2$ ability of additional procedures to increase accuracy of the fact9 findin!% and ('$ !overnments interest in administrative efficiency.

2.

+i!ht to purchase and use contraceptives 3 . tate cant prohibit distribution. +i!ht to abortion3 cant be applied because state has 2 compellin! interests that often compete / protectin! womans health and protectin! the fetus. 6ndue burden test applies (not strict scrutiny$. 1rior to viability states may not prohibit abortions% but may re!ulate them so lon! as they do not create an undue burden on the ability to obtain abortions. ;fter viability may prohibit e)cept where endan!ers mothers life. No !overnment duty to subsidi(e abortions or provide in public hospitals. pousal consentEnotice laws unconstitutional. 1arental notice for minor o: if theres alternative of !oin! before jud!e. +i!ht to refuse medical treatment3 no level of scrutiny has been set yet% but the ri!ht e)ists.

D.

Substantive due process # &ig%t to 'ote

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Substantive due process # Economic liberties

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+ational basis test3 used for laws affectin! economic ri!hts (e.!.% employment re!s% consumer protections$ 5a:in!s clause3 0th;. &overnment may ta:e private property for public use but must pay just compensation. 5a:in! can be possessory (always a ta:in! no matter how small$ or re!ulatory (i.e.% leaves no reasonable economically viable use of land% merely reducin! value is not enou!h$. "ontracts clause3 No state shall impair the obli!ations of contracts. ;pplies only to stateElocal interference with e)istin! contracts. #nterference with private contracts must meet intermediate scrutiny. #nterference with !overnment contracts must meet strict scrutiny. *) post facto clause3 !overnment may not pass e) post facto law that criminally punishes conduct le!al when it was done or increases punishment after commission of the crime. 4nly applies to criminal. +etroactive civil liability need only meet rational basis.

+estrictions on ri!ht to vote other than on basis of residence% a!e% and citi(enship are invalid unless they pass . a. +easonable time periods for residency (i.e. 'C days$ are valid. "on!ress may override in presidential elections and substitute its own. b. "onditionin! ri!ht to vote or hold office on ownership of property usually invalid. *)ception / special purpose elections. c. 1oll ta)es are unconstitutional.

d. 2. a.

tates may re2uire early re!istration to vote in primaries. =ilution of ri!ht to vote 4ne person% one vote3 applies whenever any level of !overnment% state or local% decides to select representatives to !overnment body by popular election from individual districts. =oesnt apply to special elections for officials dealin! with matters of special interest (i.e. water stora!e districts$. &errymanderin!3 race and other suspect classifications cant be main factor in drawin! boundaries of votin! districts unless district plan can pass .

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E(ual Protection

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Substantive due process # privacy rig%ts

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trict scrutiny3 privacy is fundamental ri!ht protected under substantive due process% so strict scrutiny !enerally applies. +i!ht to marry3 strict scrutiny. tatute restrictin! ri!hts of prison inmates to marry will be upheld if reasonably related to le!itimate penolo!ical interests. +i!ht to procreate3 strict scrutiny +i!ht to custody of ones own children3 permanent deprivation re2uires strict scrutiny +i!ht to :eep the family to!ether3 strict scrutiny. ;pplies to e)tended family% not just children. +i!ht to control upbrin!in! of ones children 3 . 1arents have ri!hts to ma:e decision about care% custody% and control of :ids.

;pproach to *1 problems3 What is the classificationH What level of scrutiny should be appliedH =oes this law meet the level of scrutinyH 1rovin! discriminatory classification3 for or # to apply% there must be intent on part of !overnment to discriminate. #ntent may be shown by3 a. >aw that is discriminatory on its face7

b. c.

=iscriminatory application of a facially neutral law7 or =iscriminatory motive behind law. (most difficult to prove because discriminatory effect alone isnt enou!h7 there must be motive such as history of discrimination$.

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"onstitutional provisions3 *2ual 1rotection "lause (*1"$ of 1,th; applies only to state and local !overnments. *1 is applied to federal !overnment throu!h 0th; =1"% which includes *1 re2uirement. uspect classifications3 race% national ori!in% and aliena!e. .

Juasi9suspect classifications3 !ender and le!itimacy. # .

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4ther classifications3 +I used for all other classifications% includin! a!e% disability% wealth% economic% and se)ual orientation. i.e. mandatory retirement a!es may be established. *ducation isnt fundamental ri!ht so theres no denial of *1 when wealthier :ids can afford to pay for access to best state9 operated schools. +aceEnational ori!in classifications3 applies. #f law is facially neutral% must prove both discriminatory impact and intent. also applies to laws benefitin! a minority. Numerical set9asides re2uire that set9aside is needed as a remedy for documented past discrimination. +ace can be 1 factor in school admissions decisions. "annot disrupt seniority systems for affirmative action. ;liena!e classifications3 is !enerally used% but only +I is used for aliena!e classifications that concern self9 !overnment and democratic process (e.!.% votin!% bein! a teacher% police officer% juror% or probation officer$ and for "on!ressional discrimination a!ainst aliens. # used for children of undocumented aliens. 6ndocumented aliens arent suspect classification% so laws on them are subject to +I. &ender classifications3 # . "ourt re2uires e)ceedin!ly persuasive justification. #f law facially neutral% must prove both discriminatory impact and intent. #ntentional discrimination a!ainst women is invalid but classifications benefitin! women that are desi!ned to remedy past discrimination are !enerally valid. #ntentional discrimination a!ainst men is invalid% but certain laws have been found to be substantially related to important !overnment interest (i.e. statutory rape laws% all9male draft$. >e!itimacy classification3 # . >aws that deny a benefit to all non9marital children and !rant to all marital children are unconstitutional. 8undamental ri!hts3 ri!ht to interstate travel% privacy% votin!% and 1st; ri!hts. . "ontent9based v. content9neutral restrictions3 content9 based re!ulations bannin! communication of specific ideas must meet . 2 :inds of content re!ulations / subject matter and viewpoint. "ontent9neutral (re!ulation of conduct associated with spea:in!% such as time of speech% sound level% etc$ need only meet # .

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5here must be prompt and final determination of validity of restraint. Fa!ueness and overbreadth3 law is va!ue if you cannot tell what speech is allowed and what is prohibited. 4verbroad if it re!ulates substantially more speech than "onstitution allows. 8i!htin! words statutes (thou!h fi!htin! words are unprotected speech$ have been held unconstitutionally va!ue and overbroad. 5here must be defined standards. ymbolic speech3 re!ulation must have an important interest unrelated to suppression of messa!e and must not have impact on communication !reater than necessary to achieve !overnment purpose. ;nonymous speech3 protected.

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A.

1stA # )nprotected or less protected speec% #ncitement to ille!al activity3 !overnment may punish if theres substantial li:elihood of imminent ille!al action and spea:er intended to cause such ille!al conduct.
8i!htin! words3 fi!htin! words are personally abusive words that are li:ely to incite immediate physical retaliation in avera!e person. -erely annoyin! words not enou!h. ;ttempt to punish fi!htin! words are usually va!ue or overbroad so should be invalid on -I*.

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D. 1C.

4bscenity and se)ually9oriented speech3 not protected. &overnment may use (onin! ordinances to re!ulate the location of adult businesses. "hild porno!raphy is absolutely unprotected. &overnment may not punish private possession of obscenity e)cept for child porn. 1rofaneEindecent speech is !enerally protected (fuc: the draft$ e)cept in the schools and over the broadcast media. peech is obscene if it describes or depicts se)ual conductEmaterial that3 ;ppeals to the prurient interest in se)% usin! community standard$7 b. #s patently offensive and an affront to contemporary community standards7 and c. >ac:s serious value (literary% artistic% political% or scientific$ usin! national reasonable person standard. "ommercial speech3 1rotected if its truthful. 8alse and deceptive commercial speech not protected. 5rue but misleadin! commercial speech can be prohibited. 8or other commercial speech% # applies. =efamation3 not protected. a.

1stA "reedom of Speec%

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"ontent3 usually unconstitutional to place burdens on speech because of its content e)cept for certain cate!ories of speech (obscenity% defamation% etc.$. b. "onduct3 conduct related to speech can be re!ulated by content9neutral time% place% and manner restrictions. 1rior restraints3 . 1revents speech before it occurs% rather than punishin! it afterwards. +arely allowed. &overnment must show that some special societal harm will otherwise result. -ust comply with court order until vacated. &overnment has burden. ;pplies to sei(ures of boo:s and films and movie censorship cases. 5o be valid% prior restraint must provide safe!uards3

1stA # Places available for speec% 1ublic forums3 !overnment properties that !overnment is constitutionally re2uired to ma:e available for speech (i.e. public par:s and streets$. +e!ulations must be subject matter and view9point neutral. applies. -ust be time% place% or manner re!ulation that serves an important !overnment purpose and leaves open ade2uate alternative places for speech. >imited public forums3 !overnment properties that !overnment could close to speech but chooses to open to speech on permanent or limited basis. 6se same rules as for public forums. 5ime% place% and manner restrictions3 51- re!ulations must be3 a. "ontent9neutral7

2.

a. b.

tandards must be narrowly drawn% reasonable% and definite7 #njunction must promptly be sou!ht7 and

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Narrowly tailored to serve an important !overnment interest7 and

b. ,.

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>eaves open alternative channels of communications. Non9public forums3 !overnment property that !overnment can and does close to speech. +e!ulation must be reasonable (rational basis$ and view9point neutral (i.e. sidewal:s in front of post office% military bases% outside of jails$. 1rivate property3 no 1st; ri!ht to access private property for speech.

1stA "reedom of Association 1. 8undamental ri!ht7 applies. 2. 5o punish membership in !roup3 it must be proven that person actively affiliated with !roup :nowin! of its ille!al activities and with specific intent of furtherin! those ille!al activities

'. +e2uired disclosure of !roup membership3 where such

disclosure would chill association must meet .

,. 1rohibitin! !roup from discriminatin!3 is constitutional

unless law interferes with intimate association or e)pressive activity. 1stA "reedom of &eligion

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8ree *)ercise "lause3 !overnment shall ma:e no law prohibitin! the free e)ercise of reli!ion. 1rohibits interference with reli!ious beliefs but doesnt prohibit re!ulation of conduct. #f !overnment action re!ulates !eneral conduct% includin! reli!ious conduct% its valid (e)ceptions / unemployment benefits for those who 2uit jobs for reli!ious reasons and education of ;mish children$. 5o be challen!ed% law must be motivated by a desire to interfere with the reli!ion. #f law not neutral% strict scrutiny. *stablishment "lause3 !overnment shall ma:e no law respectin! an establishment of reli!ion. 5est is there must be a secular purpose for the law% the effect must be neither to advance nor inhibit reli!ion% and there must not be e)cessive entan!lement with reli!ion ( *K test$. trict scrutiny. chool sponsored reli!ious activity is invalid but school accommodation of reli!ion is valid. 8inancial benefits to reli!ious institutions 3 !overnment may !ive aid to defined class of persons if defined without reference to reli!ion or reli!ious criteria% even if most recipients use it to attend reli!ious school. ;id to colle!es and hospitals o: as lon! as !overnment re2uires aid to be used for nonreli!ious purposes. ;id to reli!ious !rade schools and hi!h schools usually found to have secular purpose but if pro!ram has detailed re!ulations to prevent effect of advancement of reli!ion% law will be invalid for e)cessive entan!lement.

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