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Federal Judicial Power
a. Power over all “cases and controversies” (Article III)/Justiceability Doctrines (applies to every federal court) i. Standing (whether the plaintiff is the proper party to bring litigation) 1. Injury In Fact (has been injured or imminently will be injured) a. Examples: Violations of common law rights (torts, breaches of contract, invasion of property rights), constitutional rights (violations of the establishment clause, etc.), or statutory rights; Claims of aesthetic or environmental injuries; Injury to economic interests b. Plaintiffs may only assert injuries that they personally have suffered (no third party standing), except that: i. Third party standing is allowed if: 1. There is a “special relationship” between the claimant and the third party (so that the claimant can be trusted to represent the third party’s interests) (e.g., physician-patient; seller-buyer); and 2. It would be difficult, unlikely, or impossible for the third party to challenge the government action itself a. Example: Criminal defendants have third party standing to raise the rights of prospective jurors to be free from discrimination in the exercise of jury selection ii. An organization may sue for its members if: 1. There is an injury in fact to the members that would give individual members a right to sue on their own behalf; 2. The injuries to the members are related to the organization’s purposes; and 3. Neither the nature of the claim nor the relief requested requires participation of the individual members c. A plaintiff seeking injunctive or declarative relief must show a likelihood of future harm. City of Los Angelas v. Lions, d. The grievance of the plaintiff cannot be generalized and plaintiff cannot sue solely as a citizen or taxpayer interested in having the government follow the law i. Exception: Only time Taxpayers have standing to challenge government expenditures of money as violative of the Establishment Clause. 1. Does not include the right to challenge government grants of property to religious institutions 2. Causation and Redressability a. Plaintiffs must show a causal connection between the injury and the conduct complained of (i.e., injury is traceable to the challenged conduct of the defendant and is not attributable to some independent third party) and that a ruling favorable to the litigant would eliminate or remedy the harm to him ii. Ripeness (becomes an issue whenever a plaintiff seeks declaratory relief) Pre-inforcement review of statutory judgment 1. Courts can only decide concrete disputes between parties with adverse interests and cannot issue advisory opinions, give abstract legal advice, or decide hypothetical disputes 2. A plaintiff is not entitled to review of a law before it is enforced (i.e., may not obtain a declaratory judgment), and a court will not hear a case unless the plaintiff has been harmed or there is an immediate threat of harm
a. Court will look to the hardship that will be suffered without pre-enforcement review, the fitness of the issues, and the record for judicial review. (If nothing is to be gained from waiting for the law to be violated than ripeness is allowed) iii. Mootness (when case will be dismissed as moot) 1. A moot dispute is one that has ended, or one in which the plaintiff’s grievance has been resolved so that there is no longer any dispute for the court to decide. When this happens, federal courts no longer have authority to decide the case (lose subject matter jurisdiction). a. Exceptions (where cases will not be dismissed for mootness): i. Wrongs capable of repetition that evade review 1. Wrongs that will happen over and over to the plaintiff, but that are over so quickly that each injury cannot be reviewed while it is still ongoing. (Row v. Wade, pregnancy could be over before it could be reviewed, but could happen again) ii. Voluntary cessation (if defendant voluntarily ceases the offending action, but is free to resume it at any time) iii. Class Action Suits 1. If the named plaintiff’s claim becomes moot, a class action will not be dismissed so long as one member of the class has an ongoing injury iv. Political Question Doctrine (constitutional violations the federal courts will not adjudicate because they are left to the political branches) 1. Cases under the “Republican Form of Government Clause” or “Guarantee Clause” Art 4 Sec 4 of Constitution guarantees each state a republican form of government. (clause saying that where people elect representatives, those representatives make the laws) 2. Challenges to the President’s conduct of foreign policy (conduct regarding treaties with other countries, etc.) 3. Challenges to the impeachment and removal processes 4. Challenges to partisan gerrymandering. b. Supreme Court Review i. The Supreme Court can hear cases only after there has been a final judgment of the highest court of a state, of a United States Court of Appeals, or of a three-judge federal district court (final judgment rule) ii. Ways a case can come to the Supreme Court on appeal 1. Writ of certiorari (court has complete discretion to grant or deny) 2. Where a statute specifically provides for appeal to the Supreme Court (court is required to hear the case) 3. Where an appeal is sought from a decision of a “a three-judge federal district court” iii. Original and Exclusive Jurisdiction (only court that can hear the case) 1. Suits between state governments iv. Rule Against Hearing Cases Where There Is an Independent and Adequate State Law Ground of Decision 1. If a state court decision rests on two grounds (one under federal law and one under state law), the state’s highest court gets the last word on the state law ground and if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it. a. The Court can hear the case if a reversal on the federal claim would change the result c. Lower Federal Court Review i. Principle of Sovereign Immunity 1. The 11th Amendment bars suits against states in federal court (state governments cannot be named as defendants)
Congress may not restrict the original jurisdiction of the Supreme Court. any attempt by Congress to interfere with the implementation of the remedy would violate the Constitution) II. or 2. and vest federal judicial power (jurisdiction) in lower federal courts which it may “from time to time ordain and establish” 1.g. Congress may violate any individual constitutional rights in acting under this power ii. Congress does have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States 1. The courts.e. who can do anything which is not prohibited by the Constitution under a general police power) 1. post offices. By the federal government b. Limitations on this Power: a. Federal courts may not enjoin pending state court proceedings d. if the court determines that a violation of equal protection rights has occurred and that remedial measures are required. b. Exception: Property Power (Article IV) i.. Indian reservations.. Limitations: i. military bases. Congress may not give the Supreme Court the right to exercise jurisdiction over matters which are not “cases and controversies” under Article III. may expand or restrict the number and types of lower court decisions that the Supreme Court may hear) 1. Congress has the power to create the lower federal courts. not Congress. Exceptions: i. This immunity does not extend to: 1. Congress may not eliminate all of the Supreme Court’s appellate jurisdiction.g. both real (buildings. When there is a specific and express waiver (consent). and the District of Columbia) and personal (military . are empowered by the Constitution to determine the constitutionality of laws (e. Congress’ Power Over Federal Courts i.g. to enjoin application of state legislation) 2. c. This power allows Congress to regulate all federal property. and d. 2. Any request for injunctive relief against the state itself (e. States may be sued: 1. for money damages to be paid out of their own pockets (but not out of the state treasury)) ii. Supreme Court (e. Suits against state officers are allowed (i. Abstention (where lower federal courts have jurisdiction but don’t exercise it) 1.S.a. Federal Legislative Power a. Congress’ Ability to Act i... Sovereign immunity bars suits against states in state courts or federal agencies a. for injunctive relief. Pursuant to federal laws adopted under § 5 of the 14th Amendment (Congress may not authorize suits against states under any other constitutional provisions) 3. Congress may only act under express or implied congressional power given by the Constitution a. Congress has the power to limit the appellate jurisdiction of the U. No General Federal Police Power (unlike the states. Congress may also establish “inferior courts” and “legislative courts” (including military tribunals) that are not actual Article III courts (judges do not have lifetime tenure) iii. Local government entities or political subdivisions of the state.
Ogden. May regulate all activities which. Congress may tax and spend for the general welfare (i..g. and plants and animals on federal lands) a. (meaning that Congress. waterways. etc. Moreover. Is congress regulating economic activity? 2. Regulate the channels of interstate commerce (e. highways. Congress may regulate commerce with foreign nations. Congress may: i. and general welfare of the residents just as a state government may exercise the police power for the protection of state residents ii. Regulate the instrumentalities of interstate commerce (e. Indian tribes. sexual activity. Any congressional spending program is almost always best supported under the power to spend for the general welfare b. have a substantial effect on the national economy 1. safety. it is incorrect to assume that the commerce power extends to this type of regulation) 3. radio waves. congress may choose any means not limited by the constitution to carry out its authority. When regulating an area of non-economic intrastate activity (e. through its Commerce Clause powers.e. surplus food products. Internet) and persons or things in interstate commerce (electricity.. Congress may enact all laws that are necessary and proper to carry out its authority. substantial effect on interstate commerce cannot be based on cumulative impact (the activity being regulated must in fact directly affect interstate commerce) Morrison. the President may withhold funds if Congress so provides in the spending bill iv. non-commercial activity). when the federal government grants money to a recipient. Maryland.). the recipient must comply with all restrictions or conditions attached to the grant (government can impose conditions on the use of the funds) 2. The President does not have the right to “impound” or reduce funds which Congress has expressly mandated must be spent a. In the District of Columbia (Washington D. It is uncertain whether Congress may directly regulate. Taxing and Spending Power (Article I spending power) 1. iii. Art 1 Sec 8. in their aggregate. Necessary and Proper Clause 1. Congress may regulate the interest rates of the entire country pursuant to its Commerce Clause powers v. trucks. Powers Involving Foreign Relations . iii. can implement any tax to raise revenue and any program to expend that revenue in order to serve the general welfare) a. However. telephones. McCauloch v. Gibbons v.g. Commerce Clause 1. the minimum drinking age (therefore. even if this works a hardship on persons doing business on nearby private lands b. may choose any means not prohibited by the Constitution).. cumulative impact must be economic activity that has substantial effect.vehicles. Congress may regulate for the health.). people who travel interstate). all things related to intercourse between states may be regulated. in carrying out its authority. ii. With regards to interstate commerce. Federal government is free to manage its property. and among the states a.C..g. Internet. cattle.
However. If President vetoes. The Constitution specifically provides that congress may not delegate the power to declare war. A federal law involving foreign relations is almost always best supported by one or more of Congress’ powers over war. overturn an executive action). Exceptions (where one house of Congress can act alone): 1. such that a court could determine whether the delegatee had exceeded the authority granted to him ii. South Dakota v. As a necessary and proper means of carrying out these enumerated powers. 2. defense. Congress cannot delegate the executive power (power to implement the laws) or the judicial power to itself or its officers 1. Congress has several enumerated powers over foreign commerce.S. Legislative Vetoes a. viii.Y. 10 Amendment 1. and other areas of foreign relations a. Congress may prohibit state governments from engaging in harmful commercial activities. regulation of the armed forces. pass a law. drinking age 2. Flores. Congress could rationally conclude that criminal penalties were necessary to prevent unauthorized individuals from negotiating with foreign countries in relations to disputes with the U. City of Boerne v. Congress can act to prevent or remedy violations of rights recognized by the courts.. and it is only implicit in the Article I grant of “legislative powers” 2. there must be: i. Bicameralism (passage by both the House and the Senate). a. The power delegated is one which Congress may delegate. Congress can try to induce state action by putting expressly stated conditions on grants so long as related to purpose of program. Section 5 of the 14th Amendment 1. v. declaration of war. Reno v. Congress may not create new rights or expand the scope of rights. For Congress to act (e. Included in this power is the power of Congress to appoint its own members to investigative committees to assist in fact-finding and proposing legislation (they just cannot exercise executive functions like enforcing the law and prosecuting violations) b. Presentment (giving the bill to the President to either sign or veto) 1. i. if such laws are proportionate and congruent to remedying constitutional violations (narrowly tailored). or try cases of impeachment) 2.1. Congress may delegate its powers to the executive branch or the judiciary as long as: 1. and foreign affairs th vi. Congress’ authority to conduct investigations (and ask questions) only includes those areas or matters directly related to areas which the Constitution allows it to legislate a. All powers not granted to the United States. ratify treaties. This is so because there is no express power of Congress to investigate. Congress can pass by 2/3 vote iii. Investigation Power 1. DMV case vii. Delegation of Powers (Non-Delegation Doctrine) i. are reserved to the states or the people a. United States 1992. Prince v. nor prohibited to the states. a. The delegation contains at least some “intelligible principles” to guide the delegation.g. and ii. Congress cannot compel state regulatory or legislative action (cannot force them to make laws or administrate federal mandates) N. Dole. Initiations of impeachment of the President by the House . United States 1997. Limitations: 1. Conden.
“Inferior officers” (those with limited duties.”(where independence from president is necessary) but may not prohibit removal. Treaties always prevail over conflicting state laws 3. iii. etc. President may remove without cause at his whim 2. . Can be used for any purpose 3. if a court determines that Congress invalidly appointed executive branch officers to an agency. Executive Authority for Domestic Affairs i. “Officers of the United States” (agency heads/key employees. a. by the courts alone. Ratification of treaties by the Senate 2. Executive agreements never prevail over federal laws or the federal Constitution iii. those who serve for a limited term. can fire any executive branch official) 1. Must be negotiated by the President and ratified by the Senate 2. Executive Agreements (agreements between the US and a foreign country) 1. Treaties (agreements between the US and a foreign country) 1. Congress may not give itself or its officers the appointment power a. Line Item Vetoes a. Approval of Presidential appointments by the Senate 4. federal judges) are appointed by the President with the advice and consent (confirmation) of the Senate 2. These are unconstitutional because the President must either sign the entire bill into law or veto the whole bill Federal Executive Power (Article II) a. or by the heads of agencies/departments alone (Congress may decide). Impeachment trials by the Senate 3. the Attorney General has the power to decide whether to prosecute or not and Congress cannot interfere with this (or other) core Executive Branch function(s) (doctrine of separation of powers) b.2. Congress may limit removal to where there is good “cause. Independent Regulatory Agencies a. Attorney General i. Must be signed by the President and the head of the foreign nation (no Senate approval required) 2. Executive agreements prevail over conflicting state laws 4. Treaties that conflict with the federal Constitution are invalid ii. Removal Power (Unless limited by federal statute. those who must act within the scope of their jurisdiction. Treaties prevail over conflicting federal laws only if adopted later (the one adopted last in time prevails) 4. ambassadors. As a principal officer of the Executive Branch. b. Independent Counsel/Special Prosecutor is an inferior officer appointed by the Attorney General 3. Executive Authority for Foreign Policy i. However.) can be appointed by the President alone. Where the President attempts to veto part of a bill while signing the rest of it into law. Cabinet Level Agencies a. the court can determine that the resulting agency is merely a congressional committee which can continue to investigate and give advice to Congress (it just cannot exercise executive functions like implementing the law and prosecuting violations of it) ii. President has broad powers as Commander-in-Chief to use American troops in foreign countries (even if use is outrageous) c. Appointment Power (cabinet level agencies & independent regulatory agencies) 1. Impeachment and Removal III.
Pardon Power 1. Presidential Privilege 1. safety.1. Federalism (limits on state/local government powers due to the existence of national and state governments) (applies where there is a challenge to something a state has done) a. The Constitution. and federal officers can be impeached and removed from the office for treason or for high crimes and misdemeanors a. The President. the federal law will preempt state/local law ..g. Anytime Congress has the authority to act. When a federal statute specifically states that federal law is exclusive in a given area.e. State/local regulations of public employees are valid so long as they are within the state police power and do not violate any individual constitutional rights 1. This means that if there is a conflict between federal law and state/local law. v. President cannot pardon an officer’s crimes that lead to an impeachment by the House d. The President has executive privilege for presidential papers/memos and conversations with advisors. States can do anything which is not prohibited by the Constitution under a general police power ii. There must be a trial by the Senate. Immunity from Suit 1. Impeachment (by the House) does not remove a person from office. If a state/local law impedes the achievement of a federal objective. The President has the power to pardon those accused or convicted of federal crimes (not civil liability) a. Implied Preemption (preemption can be found even if the text of the law is silent) 1. Exception: i. but this privilege must yield to other important governmental interests (e. federal law will prevail and state/local law is preempted ii. If Congress has expressed a clear intent (through legislative history. An oath requirement is rationally related to health. States can set environmental standards that are stricter than federal standards. federal law preempts the state/local law a. state/local laws are preempted a. Exception: i. and general welfare of state residents and is valid. it can include express preemption in its statutes iii. Legislative and Line item Vetoes are unconstitutional IV. for example) to preempt state/local law. Express Preemption 1. and laws and treaties made pursuant to it. an oath that only requires that the employee swear not to engage in conduct which would be criminal or incompatible with the position. but there is no immunity for acts carried out prior to taking office.. Preemption (Supremacy Clause of Article VI) i. The officer is removed only if the Senate convicts by 2/3 vote iv. Vice President. General Police Power (held by the states) i. as long it is narrowly tailored to avoid violation of the First Amendment (i. The President has absolute immunity from civil suits seeking money damages for anything done while in office. unless Congress specifically prohibits it 2. federal judges. If federal and state/local laws are mutually exclusive (it is impossible to comply with both laws simultaneously). swear to uphold and defend the federal/state laws or the Constitution(s). and swear to oppose the overthrow of the government through illegal force) b. the federal objective prevails and state/local law is preempted 3. are the supreme law of the land 1. when documents/conversations are needed as evidence for a criminal trial) vi.
This is true even if Congress has not acted in a specific area (commerce power lies dormant) ii. If there is a need for uniform enforcement on the subject such that state or local regulation should not be allowed. a state tax levied against an independent contractor hired by the federal government is valid..4. the law will be struck down as a violation of the Dormant Commerce Clause unless it is necessary to achieve an important governmental purpose (heavy burden) 1. state schools can charge more tuition to out of state citizens than to state residents) d. for example c. and discriminates against out-of-state citizens. “Necessary” a.g. Example: The requirement that candidates for licensing must be trained within the state is an undue burden on interstate commerce because it discriminates against out of state citizens (who will be less likely to travel to the state seeking jobs) and unduly burdens interstate commerce (and insuring competency could be achieved in much less burdensome ways such as requiring competency tests or training sessions) 2. States cannot directly regulate the federal government if it puts a significant burden on federal activity. Market Participant Exception i. It is unconstitutional to pay a state tax out of the federal treasury 3. “Important governmental purpose” a. but does not discriminate. for example) b. federal law may preempt state/local law iv.g. If a state/local law burdens interstate commerce. Federal government does not have to comply with state environmental laws. State/local governments may prefer their own citizens in receiving benefits from government programs or in dealing with government-owned businesses (e. federal law may preempt state/local law 5. A state/local law is unconstitutional if it places an undue burden on interstate commerce. However. If a state/local law affects interstate commerce. a state may impose indirect. (Power to tax is power to destroy. non-discriminatory taxes on the federal government (e. Exceptions: a. Outlawing the importation of a certain type of fish in order to preserve natural resources in one state is an important governmental purpose (only one found by the courts to date) 3. Weigh the burdens on interstate commerce against the benefits gained by the state. If the burdens outweigh the benefits. If the federal regulatory scheme is so pervasive and extensive that no room is left for conflicting or even complementary state or local law. as long as the tax does not discriminate against the federal government or its agents and is levied against all contractors) 2. If Congress approves the state/local law (through enactment of a statute that permits exactly the same type of state/local regulation. Dormant Commerce Clause (“Negative Implications of the Commerce Clause”) i. Helping the state’s economy while harming the economies of other states is not an important governmental objective b. the law is in violation of the dormant commerce clause iii. Privileges and Immunities Clause of Article IV . States may not directly tax federal activity a.. The state must show that it cannot achieve its important purpose through any less discriminatory method 4. 1. Mcculoch) a. a balancing test is used to determine whether the law puts an undue burden on interstate commerce: 1. Supreme Court inferred from grant to control commerce. State Regulation and Taxing of Federal Activity 1.
The court that rendered the judgment had jurisdiction over the parties and the subject matter 2. Government must show it cannot achieve the objective through less discriminatory means e.. Row. thus cumulating Chooch’s tax burden g. by statute. State may only tax activities that have a substantial nexus to the state iii. State taxation of interstate companies must be fairly apportioned (i. Private restaurants can be required to serve patrons of every race because a lot of their supplies come from other states and the cumulative effect of discrimination by private restaurants would burden interstate commerce) c. unless it is necessary to achieve an important governmental purpose 1. Example: Chooch is a resident of State A. Constitution’s Protection of Individual Liberties a. No state may deny citizens of other states of the privileges and immunities it accords its own citizens (may not discriminate against non-residents as to the “essential activities or basic rights” of national citizenship) ii. Sine v. Exceptions: 1. Congress can regulate private behavior under the Commerce Clause (e. If the discrimination is very minimal (e. The 13th Amendment is the only constitutional provision that directly applies to private conduct b. the tax should be based on the extent of the taxable activity or property present in the taxing state) 1. Corporations and aliens cannot challenge a law under the Privileges and Immunities Clause of Article IV (must be a “citizen”) 3.g. For a State B property tax on the railroad cars to be valid. it must fairly apportion the tax so that the cars will not be subjected to a similar tax by State A. “Necessary” a. Privileges or Immunities Clause of the 14th Amendment i. It owns railroad cars used in interstate commerce. States may not use their tax systems to help in-state businesses to the detriment of out-of-state businesses ii. f. Only applies to the right to travel among the states (such a narrow construction that it has essentially been written out of the Constitution) Always wrong answer on exam unless the right to travel is part of it. Constitution Applies Only to Government Action (private action need not comply) i.e.. The judgment was on the merits 3. The cars are in State A three months of the year and in State B three months of the year. Congress can adopt statutes that prohibit private race discrimination under the 13th Amendment (which states people cannot own or be slaves) i. State Taxation of Interstate Commerce i. may apply constitutional norms to private conduct a. 1. Exception: Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior (which provides that Congress may not create new . a challenge brought under this section would be very weak 2. The judgment was final V.. Courts (federal and state) in one state must give full faith and credit to the judgments of courts in another state.e. Congress. look it up.i. their ability to earn their livelihood (meaning civil liberties or important economic activities).. State/local law may not discriminate against non-residents as to the “essential activities or basic rights” of national citizenship (i. states charges $5. It only applies if law discriminates against out of state people. Full Faith and Credit i.00 fee to out of state fishers). so long as: 1.g.
no due process for cutting off electricity. Ligquor licesnse was not enough for constitution to apply in racist activity. Or lease property to restaurant that racially discriminates. and When a private entity regulates interscholastic sports within a state. Examples of where the government is not authorizing. or facilitating unconstitutional activity: If a court enforced a racially restrictive covenant. though (right against cruel and unusual punishment) c. encouraging.rights or expand the scope of rights. Jackson v. or facilitates unconstitutional activity (Entanglement Exception) i. The other parts of the 8th Amendment have been incorporated. encourages. Portions of the Bill of Rights apply to state governments through incorporation into the Due Process Clause of the 14th Amendment 1. When a private club with a state liquor license racially discriminates. b. Rational Basis Test 1. Government usually wins. A law is upheld if it is “rationally related to any legitimate government purpose” (any conceivable purpose. b. Cohen. 7th Amendment right to jury trial in civil cases d. Intermediate Scrutiny 1.g. 2. company-owned towns) (Public Functions Exception). Levels of Scrutiny i. but may act to prevent or remedy violations of rights recognized by the courts). even if not the government’s actual purpose) 2. encouraging. It is performing a task that has been traditionally and exclusively performed by the government (e. When the government leases premises to a restaurant that racially discriminates. Challenger of the law has the burden of proof. Examples of where the government would be affirmatively authorizing.. ii. A Private Entity Must Comply with the Constitution Where: a. A court cannot enforce a racially restrictive covenant in a contract. Mooselodge case iii. therefore constitution applies. or facilitating unconstitutional activity (no state action): When a private school that is over 99% funded by the government fires a teacher for her speech (government subsidy is insufficient for finding state action) Rendall Baker v. Running a utility is not a task traditionally or exclusively performed by the government. “Substantially Related” . Entire Bill of Rights applies directly only to the federal government ii. 5th Amendment to grand jury indictments in criminal cases c. Marsh v. 3rd Amendment right to not have a soldier quartered in a person’s home b. Teacher at private school mostly subsidized by government was not required to apply constitution. Alabama. 8th Amendment right against excessive fines i. All Provisions of Bill of Rights apply to states except: a. The government affirmatively authorizes. Application of the Bill of Rights i. Metropolitan Edison. i. Law will be upheld “if it is substantially related to an important governmental purpose” (government’s actual purpose is important) a. When the NCAA (made up of public universities) orders the suspension of a basketball coach at a state university. ii. When a state provides books to schools that racially discriminate. the running of a town was traditionally done by government.
Statutory Entitlements a. Government has the burden of proof iii. right to marry. Exception: In emergency situations. The means chosen must be narrowly tailored to achieve the objective. employment if contract allows termination only upon “good cause. Ownership of land or stock 2. right to engage in the common occupations of life. right to acquire useful knowledge. Being put in solitary confinement for thirty days does not count as atypical ii. government need not provide it) i. no less restrictive alternative could be used) 2. or Property? (If yes. Must also show that you were forbidden from shopping at a certain store or were denied a job at a certain store as a result. Freedom from bodily restraint a. if no. Property Interests (an entitlement to a continued receipt of a benefit stemming from contract or state law) 1. right to worship God according to the dictates of one’s own conscience. Liberty Interests (found in State Law or a Constitutional Provision other than the Due Process Clause) Liberty interest are constitutional rights etc. government officers acted with an intent to cause harm iv. Strict Scrutiny (Compelling State Interest Test) 1. Other Liberty Rights: Freedom of speech (1st Amendment). right to contract. What Procedures Are Required if There Has Been a Deprivation i. contracts (express or implied) iii. Liberty 1. establish a home. Right to protect your honor. government must provide procedural due process. pension benefits. Those who are already in prison are only entitled to procedural due process and a hearing if their conditions change in some atypical extraordinary way i. Means must be substantially related and narrowly tailored 2.i. the government is liable under due process only if its conduct “shocks the conscious” (i. and integrity (not have your reputation tarnished) a. and bring up children. Government negligence is not sufficient for a deprivation of due process.. 3. Welfare. Stigma + (one must show harm to their reputation plus some tangible loss i. Example: Being labeled as a shoplifter isn’t enough by itself. Government has the burden of proof VI. Procedural Due Process (procedures government must follow) a.e. but the government is not required to use the least restrictive means available.” right to free public education. Balance the: . good name. govt. Law will be upheld “if it is necessary to achieve a compelling governmental purpose” (government’s actual purpose is compelling) a. The government’s failure to protect people from privately inflicted harm does not violate due process b. tenured professorships at public universities. and the government is required to use the least restrictive means available (i. right to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men ii.. Has There Been a Deprivation of Life. The means chosen must be necessary to obtain the governmental purpose. social security benefits. “Necessary” i.e. There must be intentional government action or at least reckless action for liability to exist 1. Liberty. Being put into a mental institution or given psychotropic drugs is atypical 2.
Only Rational basis test is used to review laws affecting economic rights since 1937 (e. Except in exigent circumstances. Regulatory Taking a.g. Special Rules for Certain Terminations: 1. Gore) 6. Kelly a. (BMW v.. Possessory Taking a. pre-judgment attachment or government seizure of assets must be preceded by notice and a hearing (but when property is used in an illegal activity. Welfare Termination Rule: Goldberg v. Government conditions on the development of property are only takings if they are not justified by a benefit that is roughly proportionate to the burden imposed on the landowner . incorporated in 14th Amendment for states) i.) b.. Social Security Benefits Rule: Matthews v. A mere decrease in property value or in the owner’s investment is not sufficient. Eldrige a. This is true even if the physical occupation is very small (e. A post-termination hearing is sufficient because the recipients are not in quite as bad of a situation as those who are on welfare. employment/minimum wage laws. Government regulation is a taking if it leaves no reasonable economically viable use of the property i. Is There a Taking? 1. The government may take private property for public use if it provides just compensation ii. eligibility is not based on income level. Private interest involved and its importance. Peen Central v. Takings Clause (5th Amendment for federal government. liberty. the government may seize it. Punitive damage awards require jury instructions and judicial review to ensure reasonableness and grossly excessive punitive damages violate due process.g.1. Welfare recipients must have the opportunity to receive an oral/face-to-face hearing before their benefits are terminated i. 3. 5. Michigan) VII. Lucas v. Economic Liberties (Constitution provides only limited protection) i. Risk of error in existing procedures and the value of adding additional procedures (ability of additional procedures to increase the accuracy of the fact finding). Government confiscation or physical occupation of property is always a taking i. and 3. There is an interest in keeping benefits once one becomes a recipient because benefits are relied upon and termination can lead to starvation or criminal activity 2. They have other sources of income or benefits (worker’s comp. government objective) ii. a cable wire running on the property) 2. consumer protection laws. regulations of trades or professions. etc. South Carolina Coastal Commision b. or property) a. Before a parent’s right to custody of their child can be terminated there must be notice and a hearing. and the procedures for terminating benefits are focused and elaborate.). even if the property’s owner is innocent) (Bennis v. New York City. When a school disciplines a student (by suspension. Governmental interests involved (costs/burdens associated with requiring more procedures. for example) there must only be notice of the charges and an opportunity to explain 4. 2. Substantive Due Process (whether the government has an adequate reason for taking away a person’s life.
Any state/local law that interferes with government contracts must meet strict scrutiny iv. Is the Taking for Public Use? 1. which forbids ex post facto laws (criminal laws that punish something that was legal at the time committed or increase punishment for a crime after it was committed).. Undue Burden Test . If the taking is not for public use.g. Nature of the taking—is the taking fair and is it fair to ask one individual to bear the burden iii. Temporary moratoria on development are not takings. Applies only to state/local interference with already existing contracts a. “The law must be a reasonably and narrowly tailored means of furthering an important and legitimate public interest” iii. A taking is for public use so long as the government reasonably believes that the taking will benefit the public 2. Fundamental Rights Include: 1. does not apply to civil liability. A landowner may bring a takings challenge to regulations that existed at the time the property was acquired and there is no expiration date 3. the members must be related to each other 5. c. Right of parents to control the upbringing of their children (including the right to send children to parochial schools. so retroactive civil liability need only meet a rational basis test. City of New London. No state may impair the obligations of contracts 1. Right to Privacy (a fundamental right protected by substantive due process) i. but a state may create an irrebuttable presumption that a married woman’s husband is the father of her child 4. court will look to factual background to consider the issue of taking (Penn Central Test): a. Right to purchase and use contraceptives 7. compensation is measured in terms of the loss to the owner) c. Moratoria a. Contracts Clause (Contract Clause applies only to the states. and the right to exclude visitation by grandparents) 6. Right to Marry 2. as long as they are reasonable 4. Harm to reasonable investment-based expectations (whether the law is prospective or retroactive). Economic effect/harm on the owner of the property b. Right to keep the family together (including the extended family) a. the government must return the property 3. The Ex Post Facto Clause. d. If you don’t have one of the narrow categories. Terminating custody must be backed up by a compelling state interest (such as abuse/neglect). it probably hurts investment-based expectations less than if retroactive.c. Government must pay the reasonable market value of the property in the owner’s hands (prior to the taking) (the gain to the taker is irrelevant. Is the Compensation Paid Just? 1. Laws that interfere with the right to privacy must meet strict scrutiny. If prospective. Kilo v. Never applies to the federal government ii. Right to Procreate (e. CT iv. i. Any state/local law that substantially impairs a private party’s rights under an existing contract must meet a modified intermediate scrutiny test (Public Purpose Balancing Test): 1. To be considered family. Right to abortion (compelling state interest is not used here) (not strict scrutiny here) a. rules apply to the federal government through the Due Process Clause of the 5th Amendment) i. Right to have custody of your children a. a law imposing involuntary sterilization) 3.
8. Classifications & Review they Receive i. but can regulate it so long as it doesn’t place an undue burden on the woman’s right 1. OR ii. Constitution does not require the government to fund or subsidize abortions or provide them in government hospitals c. Classifications Receiving Strict Scrutiny (compelling state interest test) 1. public educational institutions may use race as one factor among many in making admission decisions to benefit minorities and promote diversity . Parental notice and/or consent requirements for unmarried minors are constitutional as long as there is a judicial bypass provision (judge can approve abortion if in minor’s best interest or if minor is mature enough to decide) ii. Constitutional Provisions i. A prohibition on partial-birth abortions prior to viability and spousal notification and/or consent laws are undue burdens 3. Director of Health and Services a. even life saving medical care. Equal Protection Clause of the 14th Amendment applies only to state governments and never applies to the federal government ii. b. Equal Protection is applied to the federal government through the due process clause of the 5th Amendment b. Davis. Right to Refuse Medical Care. The right to engage in private consensual homosexual activities a. but a state may require clear and convincing evidence of the person’s intent b. However. government cannot prohibit abortion. Did not state what level of scrutiny to apply 10. Before viability(when the fetus can survive outside the womb).i. Race and National Origins Classifications a. Right to Vote VIII. Competent adults have the right to refuse medical care. government may prohibit abortions except where necessary to protect the life or health of the mother b. 2. Classifications that benefit minorities are given strict scrutiny as well i. Facially Discriminatory Classifications existing on the face of the law (law in its very terms draws a distinction among people based on race). Two Types i. Right to education is not a fundamental right (rational basis review) 11. Example: Discriminatory use of preemptory challenges based on race violates equal protection. Washington v. There is no constitutional right to physician assisted suicide (laws get rational basis review) 9. After viability. Facially Neutral Classifications with a discriminatory impact And intent 1. Requiring notice/consent to husband or father of fetus is not constitutional. Supreme court declared discriminatory impact of test did not require strict scrutiny without discriminatory intent. Equal Protection (applies when the government draws a distinction among people or discriminates in a law) What is the classification? What is level of Scrutiny? Does action meet Level? a. Cruzanne v. A state may prevent family members from terminating medical treatment for another c. A 24 hour waiting period and a requirement that abortions be performed by licensed physicians are not undue burdens 2.
The Supreme Court has held that encouraging naturalization of aliens is never a permissible governmental interest of any state because Congress has complete power over immigration and naturalization of aliens b. Example: Congress has plenary power to regulate immigration and naturalization and the President is vested with the power to conduct the nation’s foreign affairs iii. Exception: A property ownership requirement was upheld once for a water district election 1. Exceptions: i. Bolinger Gratz v. a durational residency requirement can be imposed. Only permissible examples: Government may discriminate against aliens with regard to voting. Educational Institutions may Use race as a factor Gruter v. but it cannot last longer than 50 days ii. or being a probation officer. Generally strict scrutiny is used i. Laws Affecting the Right to Vote (laws that keep some people from voting. Restrictions on foreign travel receive only a rational basis level of review (not a fundamental right to travel to foreign countries) 4. Bolinger 2. for voting. a water district election which only directly affects landowners in that district). Example: Residency requirements imposed by a state government as a prerequisite to the enjoyment of the “basic necessities of life” have been struck down by the Supreme Court as violative of the Equal Protection Clause in cases involving welfare benefits and medical care (including midwifery) b. Discrimination by the federal government (Congress or the President) receives only a rational basis review 1. Property ownership requirements for voting or holding public office are unconstitutional i. Discrimination against undocumented alien children receives intermediate scrutiny 3. Alienage classifications that concern the democratic process or implement public policy receive only a rational basis review 1. Durational residency requirements must meet strict scrutiny i. Example: Laws allowing only citizens to take a bar exam are unconstitutional ii.e. Quotas or set-asides based on race are unconstitutional. teaching in elementary or secondary school. using race in drawing election district lines) a. Seniority systems may not be disrupted for affirmative action c. Alienage Classifications (laws that discriminate against non-citizens) a. . being a police officer. serving on a jury. holding elected office.ii. Poll taxes are unconstitutional (because they will keep poorer citizens from voting) b. This is because the “one person. unless they are implemented as a remedy for clearly proven past discrimination d.. one vote” principal does not apply to elections which are held for a limited purpose (i. Exceptions: i. However. Laws Affecting the Right to Travel (laws that keep people from moving into a state) (fundamental right) a. ii.
two separate districts voting to merge) d.g. OR ii. Example: Discriminatory use of preemptory challenges based on gender violates equal protection b. Age (e. Exceptions: 1.e. Where application of the law depends on the topic of the speech (subject matter restriction) (e. Craige v. Classifications Receiving Intermediate Scrutiny 1. Gender Classifications (intermediate scrutiny requiring an “exceedingly persuasive justification”) a. Legitimacy Classifications (children whose parents are or were not married at birth) a. Classification existing on the face of the law. “One person. Freedom of Speech i.. United States v.g. Sexual orientation IX. Laws that deny a benefit to all non-marital children.g. Disability 3. g.g. Although the right to run for political office is not a fundamental right. OR . Economic classifications 5. where every voter casts three votes for three members to be elected on city council) e. Intermediate scrutiny applies to laws that benefit women as well i. At large elections are constitutional.g.c. but grant it to all marital children are unconstitutional iii.. Cases i. mandatory retirement laws) 2. Classifications Receiving Rational Basis Review 1. Counting the uncounted votes in a presidential election without preexisting standards violates equal protection.. unless they are implemented as a remedy for clearly proven past discrimination d. voter signature requirements) are invalid unless they further “vital state objectives” that cannot be achieved in “significantly less burdensome ways” ii.. but has discriminatory impact and intent 1. Classification that is neutral on its face. If the government uses race in redistricting than must meet strict scrutiny f. but really are based on role stereotypes (e.. Voter approval does not justify deviation (i. First Amendment a. Laws that appear to benefit women. one vote” must be maintained for all state and local elections (all districts must be about equal in population) i. Two Types i. Laws giving differences in opportunities are unconstitutional. Boren ii. Content-based laws 1. “no picketing in residential neighborhoods unless it is related to labor disputes. unless there is proof of a discriminatory purpose and impact (e. that all women are economically dependent on men) are unconstitutional c. Generally intermediate scrutiny is used i. The Right to Run for Political Office i.. state restrictions on candidates (e.” “candidates for judicial office cannot make statements about political issues). Wealth (poverty is not a suspect classification) 4. Virginia 2.
“no demonstrations in city parks”) 2. Penalty enhancements for hate-motivated crimes are constitutional (punishing conduct. and iii. iv. It has an important interest unrelated to suppression of the message. and b. 2. Must meet strict scrutiny Content-neutral laws 1.g. but anti-war demonstrations are not”) 3. viii. Fighting words laws are unconstitutionally overbroad Symbolic Speech 1.g. A judicial order or an administrative system that stops speech before it occurs a. 7. etc. Flag burning is constitutionally protected symbolic speech 3. However. Burning a cross and painting a swastika is protected speech a. Anonymous Speech 1. “all live entertainment is prohibited” prohibits much more than just pornography/obscenity (it prohibits live theater. not speech). Nude dancing is not constitutionally protected 5. iii. The government may require a license or permit for speech as long as: i. Procedurally proper court orders must be complied with until they are vacated or overturned. Receive intermediate scrutiny Prior Restraint 1. vi. Incitement of Illegal Activity . Violating a court order prevents you from later challenging it b. even if you believe they are unconstitutional.g.. Clear criteria leave almost no discretion to the licensing authority. Licenses a. The licensing scheme contains procedural safeguards (such as prompt determination of requests for licenses and judicial review) Vagueness 1.. the government may punish physical threats and the defacing of another’s property 6. Is protected by the First Amendment Categories of Speech Not Protected (or given less protection) by the First Amendment 1. Example: A law stating. but expenditure limits are unconstitutional.ii. whatever its topic or viewpoint (e. Government can regulate conduct that communicates if: a. Gag orders to prevent negative or prejudicial pre-trial publicity are unconstitutional 2. “pro-war demonstrations are allowed. There is an important reason for licensing. v. ii. The impact on communication is no greater than necessary to achieve the government’s purpose 2. Draft card burning is not constitutionally protected 4. TRO) i.) 2.. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed 2. Laws applying to all speech. Fighting words laws (words that are likely to promote a fighting response) are unconstitutionally vague Overbreadth 1. A law is unconstitutionally overbroad if it regulates substantially more speech than what the Constitution allows to be regulated a. Court orders prohibiting speech must meet strict scrutiny (e. vii. Where application of the law depends on the ideology of the message (viewpoint restriction) (e. Contribution limits for candidates or committees are constitutional.
Pornography & Obscenity a. “fuck the draft. If plaintiff is a public official (or one running for office) or a public figure (those who thrust themselves into the spotlight and have access to the media): i. Taken as a whole. Example: An eye doctor can be prevented from calling his business “sight for sore eyes” ii. 3. Other commercial speech can be regulated if intermediate scrutiny is met i.) i. Defamation a. True commercial speech that inherently risks deception can be prohibited i. Commercial speech a.g. Exceptions: 1. Material is patently offensive under the law prohibiting obscenity iii. However. but it does not need to be the least restrictive alternative 4. Government may use zoning ordinances to determine and limit the locations of adult book stores and theaters.. Government may seize the assets of businesses convicted of obscenity law violations f. Local standard ii. in person solicitation by attorneys (e. Material appeals to the prurient interest (a shameful or morbid interest in sex) 1. the work lacks serious redeeming artistic. or scientific value 1. Government may prohibit professionals from advertising or practicing under a trade name 1. Government may not prohibit accountants from soliciting clients face-to-face c. Government may not punish private possession of obscene material. Not protected if spoken in school (schools may punish). Test for Obscenity i. children must actually be used in its production (not computer generated children) d. even if it is not obscene i. political. Must prove falsity and actual malice (by clear and convincing evidence) 1. showing up in hospital rooms to get clients) 1.” etc. but may punish private possession of child pornography e. Government may prohibit face-to-face. National standard b. Lawyers can offer free services to a client face to face 2. threats to someone’s safety. if the threat is imminent or actually likely to be carried out) 2. False and deceptive ads are not protected (may be punished) b. c. Profane and indecent speech is protected by the First Amendment (swear words. literary. Government may punish speech if there is a substantial likelihood of imminent illegality and the speech is directed at causing that imminent illegality (e. ambulance chasing. Actual Malice: Defendant knew the statement was false or acted with reckless disregard for the truth .a. Lawyers may send letters in the mail to solicit business 3. Regulation must also be narrowly tailored.g. Not protected if aired over free broadcast media (TV and radio) (a radio or TV station can be punished for broadcasting profane indecent speech) 2. Government may ban child pornography. Exception: a..
rape victim names from government records) b. or punish a person for. Places Available for Speech 1. presumed and punitive damages can be recovered without proving actual malice 5. Freedom of Association i. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call. If plaintiff is a private figure. Limited Public Forums – Government properties that the government can close to speech. With the specific intent of furthering those illegal activities iii. Once the government chooses to open the property for speech. Must prove falsity and negligence to recover compensatory damages ii. Non-Public Forums – Government properties that the government can and does close to public speech (e. Subject matter and viewpoint neutral (content neutral) in order to avoid strict scrutiny.. parks) a. it must be proven that the person: 1. Public Forums – Government properties that the government is constitutionally required to make available for speech (e. and 3. Except in some cases the press will have the right to attend criminal trials ix. Government regulations of public forums need not use the lease restrictive alternative c. To punish membership in a group. advertising space on city buses. and manner regulations that serve an important government purpose and leave open adequate alternative places for communication b. Government may regulate. Time. military bases. ii. Airports i. but cannot prohibit distribution of literature 4. 2. areas outside jails/prisons. must meet strict scrutiny iv. schools) a. The government may not create liability for the truthful reporting of information that was lawfully obtained from the government (e. place. but regulations must be: i. Government can prohibit solicitation of money at airports.g. Privacy a. if the media did not participate in the illegality and it involves a matter of public importance c. Government can regulate speech in non-public forums as long as the regulation is reasonable and viewpoint neutral (doesn’t have to be subject matter neutral though) b. candidate debates sponsored by government owned radio/TV stations) a. There is no First Amendment right to access privately owned property for speech b.b. Laws that require disclosure of group membership. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity .g.g.. but the matter is of a public concern (public has a legitimate interest): i. Actively affiliated with the group. but chooses to open to speech (e. it must meet all of the requirements for public forums 3. Permits and permit fees are constitutional. Government may keep information confidential from the press i. sidewalks. sidewalks on post office property.. group membership must meet strict scrutiny. AND ii. If plaintiff is a private person and the matter is private. Must prove actual malice to recover presumed or punitive damages c.. but city officials cannot have discretion to set permit fees for public demonstrations 2.g. Laws that prohibit. where such disclosure would chill association. Knowing of its illegal activities.
e. the government interest is more important because of the clear danger posed to the public and the animals i. Lemon Test (law is unconstitutional if it fails any part) a. Example: Government cannot directly pay teachers’ salaries in parochial schools. it must include other religious symbols and secular symbols. Example: A state fired two drug counselors for the ingestion of peyote as part of their Native American rituals.. Establishment Clause 1. The fact that the religious practitioners sincerely believe in the need for the animal sacrifice is not sufficient to justify the conduct of such sacrifices b. The law was a general regulation—ban on the use of peyote. A small dinner party is an intimate association and if someone wasn’t invited because of race or gender. even if restricted to those teaching only secular subjects ii. but cannot inquire into whether a person’s religious beliefs are true or valid 2. Prohibits the government from imposing any burden on. The government may regulate religious conduct (but not the belief itself) if the interests advanced by the government regulation outweigh the burden imposed on religion. the KKK can exclude African Americans. Free Exercise Clause (First Amendment applies to federal government. Example: A state statute preventing cruelty to animals serves important governmental interests in protecting animals from cruelty and harm.Examples: a. individuals because of their religious beliefs a. No excessive entanglement with religion i. or granting any benefit to. unless the law is motivated by a desire to burden religion a. Example: A nativity scene by itself on government property is an endorsement of Christianity. Example: Government financial assistance to post-secondary religious schools (i. The government may not deny benefits to individuals who quit their jobs for religious reasons ii. Nazis can discriminate against Jews. . While there is a burden on Satan worshippers who practice religious sacrifice. 3. and a party cannot challenge a law of general applicability under the Free Exercise Clause. c. Secular purpose for the law b. made applicable to the states through the Due Process Clause of the 14th Amendment) 1. freedom of association would protect the right to exclude b. The court may inquire into the sincerity with which an asserted belief is held by a person and into the importance of the belief to the religious or spiritual system of the person. For the nativity scene to be constitutional. colleges and universities) for secular use is constitutional as long as the primary purpose and effect of the funding is non-religious (there is no risk of excessive entanglement) 1. This is so because the risk of excessive government entanglement is minimal at the post-secondary level because the religious colleges and universities are primarily secular 1. Freedom of Religion i. and the Boy Scouts can exclude homosexuals because discrimination is integral to the group’s expressive activity/message c. No purpose to address or seek out a religion. Effect is neither to advance nor inhibit religion (government must not symbolically endorse religion or a particular religion) i. Government may make no law respecting the establishment of religion 2.
school prayer. Government sponsored religious activities in public schools are unconstitutional (e. clergy delivered prayer at graduations. student delivered prayers at high school football games. etc. Government may provide parents with vouchers they can use for parochial schools i. it is by the parent’s choice .. Government cannot discriminate against religious speech or among religions unless strict scrutiny is met 4.educational institutions as opposed to the primary and secondary religious schools where religious instruction is stressed 3. The government may give assistance to parochial schools. Government Aid to Parochial Schools a. This is true because there is the secular purpose of improving education and if the money ends up in religious schools.). silent prayer in schools.g. as long as it is not used for religious instruction b. but religious student and community groups must have the same access to school facilities as non-religious groups 5.
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