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Con law Federal judicial power Article 3 of the constitution requiring cases and controversies o Justiciable: actual cases,

no advisory opinions o Congress has power to delineate the original and appellate jurisdiction of article 3 courts, but bound by the standards set forth in Article 3 as to subject matter, party jurisdiction, and the requirement of a case or controversy. Original jurisdiction o SC has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between state

Standing: whether the plaintiff is proper party to bring the case, 4 requirements. 1. Injury: injured or imminently will be injured. I. No mere ideological objections, but personally suffered: real and immediate danger to their interest. II. If seeking injunctive or declaratory relief, show likelihood of future harm 2. Causation and redressability: defendant caused the injury so courts decision can remedy the harm I. If ruling has no effect, then advisory opinion, thus not allowed 3. No third party standing I. Exceptions i. Close relationship to adequately represent, like doctor-patient. Non-custodial parent not allowed ii. If injured party is unlikely to be able to assert own rights iii. Organization for its members, if 1. Member would have the standing to sue 2. Interests are germane to the organizations purpose 3. Neither the claim nor relief requires participation of individual members 4. No generalized grievances: not as a citizen or as a taxpayer I. Exception i. Challenging government expenditures pursuant to federal statutes as violating the established clauses (tax credits not under the establishment clause exception). Otherwise, too remote. (Congresss spending power must be involved) ii. Federal action violating the tenth amendment by interfering with the powers reserved to the states if one can show injury in fact and redressability Justiciable: case or controversy plus others No advisory opinions 1

Present harm or threat of specific future harm. Complainants must show a real and immediate danger to their interests; if a statute has never been enforced and no fear of to be, then no.

Ripeness: whether a federal court may grant pre-enforcement review of a statute or regulation Focus on before the claims have been developed Hardship will be suffered without pre-enforcement review Fitness of the issue and record for judicial review

Mootness: live controversy through a non-frivolous money claim Bar if claims have been resolved Exception o If wrong is capable of repetition but evades review because of its inherently limited time duration (Abortion) o Voluntary cessation: if the defendant stops, but free to resume o Class action suits: as long as someone in the class action has the ongoing injury

Political question doctrine: constitutional violations that the federal courts will not adjudicate Constitutionally committed to another branch or inherently incapable of judicial resolution o Guarantee clause: US shall guarantee to each state a republican form of government o Foreign policy: challenges to the presidents conduct of foreign policy o Impeachment and removal process o Partisan gerrymandering

Supreme Court review Final judgment rule o Write of certiorari: from states courts and US courts of appeal o Appeals from three-judge federal district courts For a state court decision, independent and adequate state law ground o If the SCs reversal of the federal law ground wont change the result, then cant hear it Original and exclusive jurisdiction o Suits between state governments

Lower federal court review No suits against state governments (excluding local government) o Sovereign immunity: 11th amendment bars federal courts from hearing suits against states, thus no state governments as a defendant in state courts or federal agencies even on federal law claims. Doctrine of sovereign immunity bars such suits in state court, unless D state consents. o 3 Exceptions Waiver by express consent 2

By federal laws adopted under section 4 of the 14th amendment only If federal government sues state governments Bankruptcy proceedings: 11th amendment doesnt apply to federal laws exercised pursuant to the Congress bankruptcy powers o Suits against state officers allowed Injunctive relief Money damages to be paid out of their own pockets If state treasury will be paying retroactive damages, then cant sue state officers Federal courts may not enjoin pending state court proceedings

Federal legislative power: enumerated and implied powers - Necessary and proper clause standing alone cant support federal law 1. Taxing (upheld if some reasonable relationship to revenue production or Congress has power to regulate the activity taxed) 2. Spending (to provide for the common defense and general welfare, for any public purpose) 3. Commerce (all foreign and interstate commerce)

There must be express or implied congressional power o MILD Exceptions: where congress has a police power Military Indian reservation Lands (federal lands) DC Article I, Sec 8: Congress can adopt all laws that are necessary and proper to exercise its authority Congress may tax and spend for general welfare Commerce power o Congress can regulate commerce with foreign nations, indian tribes, and among the states o SC upheld commerce clause in 3 situations 1. Congress may regulate the channels of interstate commerce (channels are the places where commerce occurs, such as highways, water, internet, etc) 2. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce 3. Congress may regulate economic activities that have a substantial affects on interstate commerce (If non-economic activity, a substantial effect cant be based on cumulative impact)

10th amendment: all powers not granted to the US, nor prohibited to the states, are reserved to the states or the people o 1. Congress cant compel state regulatory or legislative action Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program o 2. Congress may prohibit harmful commercial activity by state governments Delegation of powers o No limit exists on congress ability to delegate legislative power Congress may not delegate executive power to itself or its officers Requires intelligible standards o Legislative vetoes and line-item vetoes are unconstitutional President must sign or veto the bill in its entirety o For congress to act, there always must be 1. Bicamelarism 2. Presentment Other powers o War and related power To declare war, raise and support armies, and provide/maintain a navy o Investigatory power, property power (no express limitation on disposing property) o Bankruptcy power o Postal power: validly classify and place reasonable restrictions on use of the mails o Power over citizenship May establish uniform rules of naturalization. Exclusion of aliens,

Federal executive power Foreign policy o Treaties: agreements between the US and a foreign country, negotiated by the president and effective when ratified by the senate State laws invalid if conflicts If with federal statute, the later adopted one wins If with constitution, constitution wins o Executive agreements: agreement effective when signed by the president and head of the foreign nation (no senate approval) For any purpose Prevail over conflicting state laws, but never over federal laws or constitution o Commander-in-Chief: broad powers to use American troops in foreign countries Domestic affairs o Appointment President appoints ambassadors, federal judges, and officials with Senate approving nominations 4

Congress may vest the appointment of inferior officers in the president, the heads of departments, and lower federal courts Removal President may fire any executive branch official unless limited by statute Congress may limit removal if 2 requirements are met 1. Office where independence from president is desirable, AND 2. Congress can limit removal to where there is good cause shown, but not prohibit removal Congress may remove executive officers only through the impeachment Impeachment and removal President, Vice president, federal judges and all officers for treason, bribery, or for high crimes or misdemeanor Impeachment Does not remove a person from office Impeachment by the House of representatives requires a majority vote Conviction in the senate requires a 2/3 vote Immunity Absolute immunity to civil suits for money damages for any actions in office No immunity for actions prior to taking office Executive privilege For presidential papers and conversations, but yielding to other important government interests Pardon Anyone accused or convicted of federal crimes (not state crimes) unless the person has been impeached by the HOR for the underlying crimes Power does not apply to civil liability

Federalism Preemption: Article VI has supremacy clause, stating that the constitution and the laws and treaties made pursuant to it are the supreme law of the land. o 1. Express preemption: when congress has authority to act, it can state its power as exclusive in a field, preempting state and local laws o 2. Implied preemption: even if a federal statute is silent about preemption 1. If impossible to simultaneously comply with both federal and state laws If a state law impedes the achievement of a federal objective If congress evidences a clear intent to preempt state law o 3. Inter-governmental immunity: States may not charge a state tax to be paid out of federal treasury for federal government activity Dormant commerce clause o Negative implications of the commerce clause in that state or local laws are unconstitutional if they place undue burden on interstate commerce 5

Privileges and immunities clause of Article IV (Interstate P&I clause) o No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification o Only fundamental rights, those involving important commercial activities and civil liberties, are protected. Privileges and immunities clause of 14th amendment (privileges of national citizenship) o Preserve a persons right to travel from one state to another Steps (Dormant commerce clause) o Does the state law discriminate against out of staters? o If not, Article IV privileges and immunities does not apply (only for discrimination) If the law burdens interstate commerce, violates the dormant commerce clause if its burden outweighs the benefits of the law o If discriminates and burdens, violates dormant commerce clause unless 1. necessary to achieve an (non-economic?) important government purpose, AND 2. Government shows no less discriminatory alternative can achieves its goal o Exceptions for those violating the dormant commerce clause 1. Congress approval 2. Market participant exception: state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses o If discrimination is on out of staters ability to earn a living, violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose (valid if substantial justification and no less restrictive means?) Corporations and aliens cant use or invoke the privileges and immunities clause State taxation of interstate commerce o States may not use their tax systems to help instate business o States may only tax activities if there is a substantial nexus between the product or activity to be taxed and the state o State taxation of interstate businesses or companies must be fairly apportioned under a rational formula, plus fair relationship to services or benefits provided by the state Full faith and credit, if o 1. The rendering court had personal and subject matter jurisdiction, o 2. Judgment was on the merits, AND o 3. Judgment was final.

Individual liberties Constitution applies only to government action; private conduct need not comply with it. o Exceptions Public functions exception: if a private entity is performing a task traditionally, exclusively done by the government. 6

Entanglement exception: if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity Lists omitted Congress, by statute, may apply constitutional norms to private conduct o 13th amendment (prohibiting slavery and involuntary servitude), congress can prohibit private race discrimination o Commerce clause, congress can apply constitutional norms to private conduct as Civil rights act of 1964 o Congress cant use section 5 of the 14TH amendment to regulate private behavior, only to regulate state and local governments. Bill of rights o Applies directly to only federal government o 14th amendment, due process clause applies it to state and local governments to prevent depriving any person of life, liberty, or property without due process and equal protection of law Exceptions 3rd amendment right to not have a soldier quartered in your home 5th amendment right to grand jury indictment in criminal cases 7th amendment right to jury trials in civil cases 8th amendment right against excessive fines Others o 13th amendment prohibiting slavery and involuntary servitude. Congress can prohibit racially discriminatory action by anyone Level of scrutiny regarding Constitutions o Rational bases: if its rationally related to a legitimate government purpose. Challenger has the burden of proof to show either that there is no conceivable legitimate purposes, or that the law is not rationally related to it o Intermediate scrutiny: if its substantially related to an important government purpose Government has the burden of proof o Strict scrutiny: if the law is necessary to achieve an compelling government purpose Government has the burden of proof

Individual liberties (life, liberty, or property): procedural due process 1. Has there been a deprivation of life, liberty or property? o Deprivation of liberty if there is the loss of a significant freedom provided by the Constitution or a statute o Deprivation of property if a person has entitlement, a reasonable expectation to the continued receipt of a benefit, and that entitlement is not fulfilled 7

Government negligence not sufficient for a deprivation of due process; intentional government action or at least reckless action If under emergency, liable only if govs conduct shocks the conscious Govs failure to protect people from privately inflicted harms does not deny due process 2. If a deprivation, then what procedures are required? 3 part balancing test o 1. Importance of the interest to the individual o 2. Ability of additional procedures to increase the accuracy of the fact-finding, AND o 3. Govs interests are usually efficiency and saving money o Examples Welfare benefits termination requires both notice and hearing Permanent termination of parents right to custody requires both notice and hearing Institutionalization requires both notice and hearing unless in emergency Social security disability benefits termination requires only a post termination hearing Harm to reputation is not a loss of liberty Prisoners rarely have liberty interest Punitive damage awards require jury instruction to guide discretion, and judicial review to ensure reasonable awards Non-citizen held as enemy combatant is entitled to due process, thus to challenge their continued detention US citizens facing criminal charges in a foreign country by US military can file habeas corpus petition seeking review for their detention Due process requires recusal of the judge, if there is a substantial risk of actual bias Substantive due process o Ask whether the gov has an adequate reasons for taking away a persons life, liberty, or property Constitution provides only minimal protection for economic liberties Only a rational basis test for economic rights th o 5 amendment takings clause: gov may take private property for public use but only if it provides just compensation, or terminates the regulation and pays the owner for damages. Is there a taking? Possessory taking: gov confiscation or physical occupation of property Regulatory taking: gov regulation if no reasonable economically viable use of the property Is it for public use?

If gov acts out of a reasonable belief that the taking will benefit public, if rationally related to a legitimate public purpose If not, must return the property o Is just compensation paid? Measured in terms of loss to the owner in reasonable market value terms (gain to the gov irrelevant) o Notes Gov conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise its taking One may bring a takings challenge to regulation even if it existed when acquiring Temporarily denying an owner use of property is not a taking if govs action is reasonable Contract clause o Prohibits states from enacting any law that retroactively impairs contract rights (not applicable to the federal, but might violate 5th amendment due process clause) May interfere if intermediate scrutiny is met Does the legislation substantially impair a partys rights under an existing contract? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? (intermediate + rational) If state is a party to the contract, then must meet stricter scrutiny No ex post facto laws o Not applicable to civil cases, only in criminal cases o Incriminating, greater punishment, or reducing evidence required to convict

Privacy Fundamental right protected under substantive due process, thus strict scrutiny is applied o Right to marry o Right to procreate o Right to custody of ones children Terminated for compelling reason such as parental abuse or parental neglect A state may create an irrebuttable presumption that a married womans husband is the father o Right to keep the family together o Right of parents to control the upbringing of their children o Right to purchase and use contraceptives o Right to abortion Prior to viability, states cant prohibit abortions, but may regulate unless undue burden on the ability to obtain abortions No duty to subsidize abortions or provide in public hospitals Spousal consent and notification unconstitutional 9

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Parental notice and consent for unmarried minors with an alternative for judge Right to engage in private consensual same-sex activity Right to refuse medical treatment Even Even life-saving medical treatment State may require clear and convincing evidence that a person wanted treatment terminated State may prevent family members from terminating treatment for another No right to physical assisted suicide 2nd amendment right to bear arms Weapons for self defense Right to travel Preventing people from moving into a state must meet strict scrutiny Durational residency requirements must meet strict scrutiny For voting purpose, 50 days the maximum No fundamental right to international travel, so rational basis Right to vote Strict scrutiny One person onr vote for all state and local elections At large elections constitutional unless proof of a discriminatory purpose (not discriminatory impact) Use of race in drawing election district lines must meet strict scrutiny Counting uncounted votes without standards for presidential election violates equal protection No fundamental right to education under equal protection or constitution

Equal protection Whenever gov draws a distinction among people, basis for an equal protection challenge Ask o What is the classification? Race, country of ancestor or origin requires strict scrutiny Race If on the face of the law If neutral on its face, demonstrate both discriminatory intent and impact Benefiting minorities o Strict scrutiny applies o Numerical set-asides require clear proof of past discrimination o Schools may use race as one factor in admissions decision o Not as a factor in assigning students to schools unless strict scrutiny 10

Gender Intermediate scrutiny o Only if there is exceedingly persuasive justification If on the face of the law If neutral on its face, demonstrate both discriminatory intent and impact Benefiting disadvantaged o Intermediate scrutiny o Based on role stereotypes not allowed o Past discrimination or differences in opportunity allowed Alienage (non-US citizen) Strict scrutiny Rational basis for voting, jury, police, teacher, etc. Congress discrimination against aliens, rational basis Non-marital children Intermediate scrutiny All others, rational basis Age Disability Wealth Gov economic regulation Sexual orientation o What level of scrutiny should be applied? o Does this law meet the level of scrutiny? th 14 amendment equal protection clause applies only to state and local gov, not federal o 5th amendment due process clause applies equal protection to fed gov

1st amendment Content regulation is less likely to be upheld than conduct incidental to speech o content based restrictions generally must meet strict scrutiny subject matter restriction, when law applies to the topic of the message viewpoint restriction, to the ideology of the speech o content neutral restrictions need only intermediate scrutiny prior restraints o court orders suppressing speech must meet strict scrutiny violating a court order is barred from later challenging it o procedurally proper court orders must be complied until vacated or overturned o gag orders on the press to prevent prejudicial pre-trial discovery not allowed o gov can require a license for speech only if an important reason for licensing, AND clear criteria leaving almost no discretion to the licensing authority. 11

Procedural safeguard (prompt determination of requests for licenses and judicial review)

Vagueness o If a reasonable person cant tell what speech is prohibited and allowed o Often fighting words Overbreadth o If it regulates substantially more speech than the constitution allows Symbolic speech o Gov may regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the govs goal Flag burning: constitutionally protected Draft card burning: no Nude dancing: no Burning a cross: protected, unless intent to threat or intimate Contribution limits in election campaigns: allowed Expenditure limits in campaigns: not allowed (corporation may spend limitless) Anonymous speech o Protected States interest in promoting transparency and accountability in elections sufficient to justify public disclosure of names and addresses of persons signing ballot petitions Speech by gov o Rationally related to the legitimate state interest

Unprotected speech Incitement of illegal activity o Gov may punish speech if a substantial likelihood of imminent, illegal activity, and if speech is directed to causing imminent illegality Obscenity and sexually-oriented speech o Test Material must appeal to the prurient interest, or a shameful or morbid interest in sex Material must be patently offensive under the law prohibiting obscenity, AND Taken as a whole, material must lack serious redeeming artistic, literary, political, or scientific value as determined by a national standard o Zoning ordinance to regulate the number or location of adult bookstores and theaters o Child pornography may be completely banned even if not obscene Children must be used in production to be child pornography o Gov may not punish private possession of obscene materials, unless child pornography o Gov may seize all the assets of businesses convicted of violating obscenity laws 12

Profane and indecency speech is generally protected Exception over television and radio, or in school Commercial speech o Advertiing for illegal activity, and false and deceptive ads not protected o Even true commercial speech that inherently risks deception can be prohibited States may prevent professionals from adverting or practicing under trade name States may prohibit attorney in-person solicitation of clients for profit (for lawyer debt relief agency, may be required to include legal status, nature of assistance provided) Gov may not prohibit an accountants from in-person solicitation of clients for profit o Other commercial speech by intermediate scrutiny o Gov regulation of commercial speech must be narrowly tailored, but not the least restrictive alternative Defamation o If public official or running for public office, P can recover only by proving with Clear and convincing evidence the falsity of the statement, AND Actual malice D knew the statement was false or acted with reckless disregard of truth o If public figure, P can recover by proving falsity of the statement and actual malice o If private figure on the matter of public concerns, P may recover compensatory damages by proving Falsity of the statement, AND Negligence by D Speaker was not as careful as a reasonable speaker should have been For presumed or punitive damages, only by showing actual malice o If private figure not on the public concern, P can recover presumed or punitive damages without proving actual malice o IIED for defamatory speech must meet defamation standards and cant exist for speech otherwise protected by the 1st amendment Privacy o No liability for the truthful reporting of information that was legally obtained from gov o Media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call for a matter of public importance, unless media participated in the illegality o Gov may restrict its own dissemination of information to protect privacy Public has a 1st amendment right to attend gov proceedings and access to gov papers only for criminal trials and criminal pre-trials proceedings Speech by gov employees o On the job in the performance of their duties not protected Other gov restrictions based on the content of speech must meet strict scrutiny 13

Places Public forums o Gov properties that gov is constitutionally required to make available for speech o Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny o Regulations must be a time, place and manner serving an important gov purposes and leaves open adequate alternative places for communication o Gov regulation of speech in public forums need not use the least restrictive alternative o Permit fee requirements for parades or demonstrations unconstitutional if officials have discretion in setting the amount of the fee Designated public forums o Gov properties that gov could close off to speech, but chooses voluntarily to open. o Same rule as public forums Limited public forums o Gov properties that are limited in certain groups or dedicated to the discussion of certain topics o Gov regulation okay so long as reasonable and viewpoint neutral Non-public forums o Gov properties that gov constitutionally can and does close off to speech o So long as reasonable by meeting rational basis test and viewpoint neutral o Examples Military bases Areas outside prisons and jails Schools Signs on public property Sidewalks (not post office sidewalks) Airport (restrict gathering money, but not dissemination of literature) Private property o No 1st amendment right of access for speech purpose (shopping centers)

Freedom of association Laws to prohibit or punish group membership must meet strict scrutiny o To punish membership, must prove the person Is actively affiliated with the group Has knowledge of the groups illegal activities, AND Has the specific intent of furthering those illegal activities Laws that require disclosure of group membership when such disclosure would chill association must meet strict scrutiny Right to discriminate exception o Intimate association o Integral to the express activities of the group


Freedom of religion o Gov may not deny benefits to individuals who quit their job for religious reasons Establishment clause (SEX) o Secular purpose for the law o Effect must be neither to advance nor inhibit religion o No Excessive gov entanglement with religion Gov cant discriminate against religious speech or among religions unless strict scrutiny is met Gov sponsored religious activity in public schools unconstitutional o Religious student and community groups must have the same access to school facilities as non-religious groups o School prayer, even if voluntary, not allowed, not even a moment of silent prayer Gov may give assistance to parochial schools so long as its not used for religious instructions o May provide parents vouchers to use in parochial schools Free exercise clause o Cant be used to challenge a neutral law of general applicability