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CONSTITUTIONAL LAW Judiciary no advisory opinions. Ripeness P must show actual harm or immediate threat of harm. Mootness overripe. Exception capable of repetition yet evading review. Standing injury (past or future) causation & redressibility ($ or injunction). K/k standing organizations have standing if their members have standing. Taxpayers have standing to challenge their tax liability. Legislatures standing standing when they have a personal stake in the issue (injury_ to them as individuals. Line item veto someone whose line item had been vetoed has standing. 3P Standing generally you can only raise your own rights. Exception you can raise rights of someone else if there is a connection or relationship Adequate & Independent state grounds issue only arises B4 the USSC. SC cannot review a state court judgment unless it turned on federal grounds. Political question non-justiciable. 4 kinds (a) republican form of govt clause (b) foreign affairs & military command decisions (c) seating of delegates at a national political convention (d) impeachment procedures. 11thA -- you cannot sue a state govt for $ damages unless the state court consents or the US congress expressly says so to enforce the 14th A. Congress can authorize private action to sue state for $ damages. 2 requirements (1) congress must say so expressly. (2) congress must be enforcing a 14th A right civil liberty NOT economic right Federal Powers Congress has power to make war, raise army & navy, power over the D of C, to coin $, patents property power, bankruptcy, postal power. 3 big powers Commerce, Tax & Spending. Commerce Power congress can regulate anything in interstate commerce. Congress can regulate purely intrastate activity that has a substantial affect on interstate commerce (judged in the aggregate, whether all similar activity has a substantial affect). Test if everyone did this economic activity, would it have an effect on interstate commerce. Limits wholly local, non-economic intrastate activity cannot be regulated by congress. AntiCommandeering Principle congress cannot force states to carry out federal programs. Congress can carry out programs with federal employees & they can bribe states this is spending power. Civil War A (13th & 14th) 13th A eliminated slavery & gave congress legislative power vs. racial or ethnic discrimination of every sort. 14th A Equal Protection & Due Process also give congress legislative power to enforce 14th A rights (civil liberties). For the 14th A it is a right vs the state. The 14th A protects rights only vs the government. Necessary & Proper clause is not free standing, it must be linked i.e. necessary & proper to regulate commerce, coin $ "promote general welfare" is not a power of congress. Speech & Debate Clause evidentiary privilege, it protects vs the use of certain evidence federal legislature (US Senators & Congressman) & their aids can never be prosecuted or punished in relation to their official acts. Congressional or legislative veto is unconstitutional it violates procedure in the constitution. Executive Power President has the power to enforce the law, not to make it. 3 powers of the president that congress cannot control (1) power to prosecute congress cannot require criminal prosecutions of anyone (2) power to pardon the president can pardon any person for any reason for a crime vs. the US (3) congress cannot hire or fire executive officers. Congress may impeach & convict. Congress cannot give executive power to anyone it cannot hire or fire. Federal system (1) vertical the relationship of the US to the states 2 things (1) preemption federal law overrides (preempts inconsistent or conflicting state law) (2) no state interference with foreign relations (3) no state regulation or direct taxation of federal entities w/o federal consent. Full Faith & Credit judicial decisions rendered in one state must be given FFC in every state if the rendering court had jurisdiction. Horizontal relation of one state to another. There are 2 privilege & immunities clauses (1) Article 4 relates to the state and (2) 14th A relates to national citizens. Article 4 no serious discrimination vs out of state individuals i.e. a state cannot require you to live there to work there. Exception when the state or city is funding the project. Dormant commerce Clause 10th A there is only one commerce clause, it represents federal power. The Dor Comm Cl means what the states can do when congress has not acted. General rule no state discrimination vs out of state interests 2 exceptions (1) subsidies states can limit subsidies to their own residents i.e. welfare - instate tuition. (2) states as market participants state as buyer or seller of goods. The state can discriminate as a market participant. Non-Discriminatory Regulations regulations that does not differentiate between out of state & in-state is almost always valid except where it unduly burdens interstate commerce. Balance benefit vs. cost. Congressional consent when congress authorizes or consents to state regulation of commerce nothing states will do will violate the comm cl even if discriminatory. 21st A repeal of prohibition gave states the power to control consumption of alcohol w/I their borders. State taxation of Interstate commerce k/o regulations so the regulation rules apple (1) no discrimination of interstate commerce (2) non-discriminatory tax is valid w/limits (3) congress has the power to consent or forbid any kind of state taxation of interstate commerce. Nondiscriminatory tax 2 requirements for it to be valid (1) substantial nexus (2) fair apportionment. A state cannot tax unless there is a substantial nexus between that state and the activity or property to be taxed. When more than one state has this interest there must be fair apportionment of tax liability among the states. Ad valorem are taxes on personal property (value based tax) 2 k/o personal property (I) commodities -- goods made in one state and sold in another. Rule you pay the tax to every state where goods are stopped for a business purpose on tax day. (ii) instrumentalities interstate commerce trucks, etc (1) no discriminatory tax (2) non-discriminatory tax requires substantial nexus and fair apportionment. Note: congress can forbid this State Action individuals are protected by the constitution vs the govt. Requirement of state action means govt action whether state or local. Govt conduct & private conduct are meshed - issue is whether the role of the govt is so substantial that it is state action. General principal -- in the context of race discrimination it is unconstitutional for the govt to encourage or facilitate private discrimination. Govt cannot profit from private discrimination. Govt cannot enforce private agreements that discriminate. Govt does NOT have a constitutional obligation to prevent private discrimination or prohibit private discrimination. If the govt's own conduct is even handed & neutral the govt is acting constitutionally even if a private party is not. Individual rights Ex post facto a law that creates a new crime or increases a penalty retroactively is unconstitutional. Bill of Attainder legislative punishment a statute that declares someone to be a criminal is unconstitutional. Contracts Clause forbids retroactive impairment of Ks unless there is an overriding need (in the nature of an emergency) Procedural Due Process the right to notice & a hearing. Protects life, liberty & Property. Entitlement = property. Mere expectation you have nothing. 3 factors balanced by the court to determine what process is due: (1) importance of the interest (2) the value of the procedure (3) costs to the government. Timing pre-deprivation hrg termination of welfare benefits, tenured employees, predeprivation hrg required. Exception post deprivation hrg when there is a significant reason not to keep the employee on the job. Access to courts by indigents waive a filing fee when charging it would be a fundamental right. Takings clause private property shall not be taken for public use w/o just compensation. No taking w/physical occupation. Regulations are okay. Test (1) the regulation must substantially advance a legitimate interest (2) regulation must leave an economically viable use for the property. Conditional permits are common & valid if the condition is reasonably related to the cost of development. Article 4 is

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state citizenship privilege & immu clause that bars serious discrimination vs out of state individuals i.e. employment cases. Privilege & Immu under 14th A means nothing and is always a wrong answer on the MBE. Due Process & Equal Protection 5h A = federal,; 14th A (states and localities) The equal protection clause in the 14th A applies to the states and localities. Technically there is no equal protection guaranty applicable to the national government; for the govt it is called 5th A due process. As to both equal protection & due process clauses 3 standards of review (1) strict scrutiny is the law necessary for a compelling interest the burden of proof is on the govt who must prove the interest is compelling & the law is necessarily triggered by suspect classification of a fundamental right. (2) intermediate scrutiny is the law substantially related to important govt interests. Burden on the govt. Triggered by legitimacy & gender. (3) rational basis/relations is the law rationally related to a legitimate end of govt. This applies to everything else. To show that a law is racial or ethnically discriminating the P must prove both that the law was intended to treat people differently based on race in addition to disproportionate impact. De jure segregation is unconstitutional; de factor segregation I not. Busing remedy scope of the remedy is limited by the scope of the violation. It is a compelling interest for affirmative action that specifically corrects past discrimination vs. minorities. Key is "specifically" Alienage (requirement of US citizenship) 3 points (1) for the federal govt any reas regulation of aliens will be upheld bc of overriding interest in naturalization & immigration. For states & localities it is sometimes suspect & sometimes not (2) no state or local law shall have a requirement of US citizenship for private employment or govt benefits (3) US citizenship can be required for certain govt jobs, namely policy making or implementing positions Quasi suspect classifications intermediate scrutiny, substantial relation to govt interest. (1) legitimacy (2) sex/gender discrimination rule is substantially related to important interests & it must be seemingly persuasive justification. Meaning gender discrimination is always struck down. 2 exceptions (1) statutory rape & (2) draft. Rational Relations review to pass the law must only be noninsane Fundamental rights triggers strict scrutiny under both Due process & equal protect. Is the law necessary for a compelling interest. Fundamental rights: (1) Privacy umbrella term for marriage & divorce (core rights) contraceptives (right to buy not use) abortion a woman may terminate pregnancy for any reason until viability at which time the govt acquires some interest. Procedural regulations of abortion unless it unduly burdens the woman's right to terminate. Right to read or enjoy obscenity in your own home; family relations; voting is a fundamental right protection is under the Equal protect clause one person one vote means districts of equal size. Gerrymandering(1) racial k/a vote dilution unconstitutional if done on purposes. If done to advantage minority it is okay bc Voters rights Act requires this try to create majority/minority districts you can carve out districts but do not go too far. (2) political gerrymandering in theory this violates one person, one vote rule but SC imposed proof requirements that are never met it must be effective in locking out a party & must last a long time. Right of interstate travel violates equal protect clause for residency requirement okay if requirement is short. NOTE: Education is NOT a fundamental right First A Free Speech, Press Religion most laws judged under rational relations test. Warning overbreath burdens substantially more speech than what is necessary for compelling interests. Freedom not to speak govt cannot force you to endorse symbols or slogans. You do not have to pledge allegiance to the flag. Content neutral regulations on speech are typically upheld. Content based restrictions are struck down w some exceptions. Content neutral regulations regulation of time, place & manner are not regulation of content 3 requirements (1) law must be content neutral on its face & as applied administered evenhandedly & content neutral means no executive discretion (2) the law must allow substantially other opportunity for speech to take place (an alternative) (3) the law must narrowly serve a significant state interest that is anything that makes sense to a judge. Doctrine of Public forum there must be some place for you to speak. Places where speech activity basically must be allowed are called public forum. Streets, parks, public sidewalks. Speech opportunity & public forum must be observed. In a non-public forum speech may be regulated in any reasonable way. Content based restrictions general rule they are struck down. Exceptions incitement, fighting words, obscenity, defamation, commercial speech. Incitement speech can be banned if it is incitement to immediate violence. Fighting words or hate speech so insulting that the addressee might hit the person who spoke. Always think that the statute is vague & overbroad. Law of obscenity Sexy, Sickening, standards, Serious value obscenity must appeal to the prurient interest, must be patently offensive to the average person in the community, standards must be in the regulation, must lack serious value if literary, education, artistic or scientific value it is not obscene. Related issues you cannot broadcast during hours when kids may hear; child porno may always be banned; you can zone adult theatres. Defamation consists of the torts of libel & slander. Commercial speech can be prohibited in 3 situations (1) if it is misleading (2) if it pertains to an illegal product (3) the law must directly advance a substantial state interests w/suppression no greater than what is reasonably necessary. Freedom of the press freedom of the press is the freedom of the owner, the publisher. The press has no special privilege under the 1st A. They are protected from negative treatment, they may not be singled out. Campaign Finance contributions can be limited. You cannot pay bills for candidates (k/a coordinated) Direct expenditures cannot be limited and are protected by the 1st A. Speech by govt employees in general have free speech rights, if free speech affects employees jobs it is okay to fire Freedom of religion (1) free exercise clause protects religious beliefs. No right to accommodation of religious beliefs. If the legislature is regulating conduct for some legitimate reason, everyone can be made to obey the law whether they believe it or not. (2) establishment clause concept of endorsement it is unconstitutional for the govt to endorse religion in a context that might prove coercive. No official sponsored school prayer. You can read the bible in public school so long as it is not inspirational. You cannot use the bible as a devotional device. You can have prayer at state legislatures. Nativity scene okay to have as long as you have something w/I to dilute the religious message.

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