Constitutional Law

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1. Federal Judicial Power - Cases & There must be a real, live controversy between the parties.
Controversies
2. Federal Judicial Power - Cases & A case or controversy will exist if:
Controversies Elements
(1) there is an actual dispute between parties

(2) having adverse legal interests.

3. Federal Judicial Power - Cases &
Controversies - Declaratory
Judgment
4. Federal Judicial Power - Cases &
Controversies - Class Actions
Complainants must show that they have engaged in (or wish to engage in) specific conduct
and that the challenged action poses a real and immediate danger to their interests.
A suit seeking a declaratory judgment can meet the case or controversy requirement.
A class action suit in which the named representative's claim is moot can still be a case or
controversy if some class members' claims are viable.

While federal courts generally will not hear a case if it is moot, if class members' claims are
still viable, the suit will not be considered moot even though the claim of the class
representative is.
5. Justiciability Requirements (1) Standing
(2) Ripeness
(3) Mootness
(4) No Political Questions
6. Standing Whether P is a proper party to bring the matter to court:

(1) Injury in fact

(2) Causation & Redress-ability
(3) No third party standing
(4) No generalized grievances
7. Standing - Injury in Fact P must allege and prove that he or she has been injured or will be imminently injured.

No ideological objections. Abstract or hypothetical injury is not enough.

8. Standing - Injury in Fact Examples (1) Plaintiffs only may assert injuries that they personally have suffered

(2) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm
9. Standing - Causation P must allege and prove that the D caused the injury
10. Standing - Redress-ability A favorable court decision can remedy the harm

If a federal court ruling would have no effect then it is merely an advisory opinion
11. Standing - No Third Party Standing In general, a P cannot bring a claim on someone else's behalf.
12. Standing - Third Party Exceptions Third party standing allowed if:

(1) Close relationship (doctor/patient; NOT non-custodial parent).

(2) Injured party is unlikely to assert their own rights (e.g. jury discrimination)

(3) Organization
13. Standing - An organization may sue for its members if:
Organizations
(1) individual members would have standing

(2) the interests are germane to the organization's purpose

(3) neither the claim nor relief requires the participation of individual members.
14. Standing - No P must not be suing solely as a citizen or tax payer
Generalized Grievances
15. Standing - Generalized (1) Taxpayers have standing to challenge the government expenditures pursuant to federal statutes as
Grievances Exceptions violating the Establishment Clause.

(2) Citizen has standing to allege federal action that violates the 10th Amendment by interfering with the
powers reserved to the states so long as there is injury in fact and redressability.
16. Standing Examples (1) A court is likely to find standing in a suit by a business owner against the federal government, claiming
that the government's failure to conform to a statute has reduced the profitability of his business.

(2) A plaintiff who has been injured by the government's failure to conform its conduct to the requirements
of a specific federal statute has the required stake in the outcome necessary to find standing.

(3) A citizen's interest in seeing that the government acts constitutionally is too remote an interest on
which to base standing.
17. Standing - Federal A suit alleging that P was harmed by the agency's failure to act pursuant to the statute creating the
Agency agency and seeking to force compliance is justifiable and will not be dismissed for lack of standing.

A P can have standing to require government actors to conform to a federal statute if the plaintiff's injury
is within the "zone of interest" meant to be protected by the statute. Because P's harm stems from the
agency's failure to act, P appears to meet the zone of interest requirement.
18. Standing - Organization An organization has standing to challenge government actions that cause an injury in fact to its members
if the organization can demonstrate the following three facts:

(i) An injury in fact to the members of the organization that would give individual members a right to sue
on their own behalf;

(ii) The injury to the members must be related to the organization's purpose; and

(iii) Neither the nature of the claim nor the relief requested requires the participation of the individual
members in the lawsuit.

A suit alleging that agency action harms members of plaintiff's organization, member participation in the
suit is not needed, and the agency action interferes with the goals of the organization is justiciable.

An organization may challenge a government action on behalf of its members even if the members are
unable to participate in the lawsuit.
19. Standing - While generally, there is no federal "taxpayer standing" because a federal taxpayer's interest is too remote,
Establishment Clause the Supreme Court has carved out an exception for cases where the claim is that a congressional
Exception for Taxpayer spending measure violates the Establishment Clause.
Standing
20. Standing - Assignee's A court is likely to find standing in a suit by an assignee of a claim against the federal government for
Claim Against the which sovereign immunity has been waived, claiming as the only injury a share of any recovery.
Federal Government
Assignees of claims have a sufficient stake in the outcome of the claim.
21. Ripeness Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.

Considerations:

(1) the level of hardship that will be suffered without pre-enforcement review

(2) the fitness of the issues in the record for judicial review (i.e. is there something to be gained by waiting for an actual
prosecution)

(Exam Tip: If the question includes a request for declaratory judgment, analyze ripeness)
22. Mootness P must present a LIVE CONTROVERSY

If events after the filing of a lawsuit end P's injury, the case must be dismissed as moot.

However, a non-frivolous money damages claim will keep the case alive
23. Mootness - (1) The alleged action is capable of repeated harm but escapes judicial review because of its inherently limited time
Exceptions duration (e.g. abortion)

(2) Voluntary Cessation - If the defendant voluntarily halts the offending conduct but is free to resume it at any time,
the case will not be dismissed as moot (i.e. voluntarily giving up a discriminatory hiring practice).

(3) Class action suits (If the named P's claim becomes moot, the case continues so long as one member still has an
ongoing injury.)
24. Political The political question doctrine refers to constitutional violations that the federal courts will not adjudicate.
Question
Doctrine Cases that are dismissed as non-justiciable political questions:

(1) Guarantee each state a republican form of government (guarantee clause)

(2) President's foreign policy

(3) Impeachment and removal process

(4) Partisan gerrymandering

25. Political A political question is an issue committed to another branch of the federal government, and a federal court will not
Question review such an issue. Political questions also include issues inherently incapable of resolution and enforcement by the
Examples judicial process.

Examples:

(1) A question of whether presidential papers are necessary to the continuation of a criminal proceeding is justiciable
and not a political question.

(2) A question regarding the conduct of foreign relations is a political question, and the Supreme Court will not decide
it. This question is committed by the Constitution to another branch of the government.

(3) A question as to the procedures used by the Senate to try impeachments is political, and the Supreme Court will
not decide it. This question is committed by the Constitution to the Senate.

(4) A question as to whether a candidate for Congress meets the age and residency requirements for office is a
political question, and the Supreme Court will not address it. This question is committed by the Constitution to the
respective houses of Congress.
26. Abstention & Doctrine of Abstention is the concept that a federal court will not review a claim because it is based on an
Strict Necessity unsettled question of state law, involves a pending state criminal proceeding, or involves a pending
state civil or administrative proceeding that concerns an important state interest.

Under the doctrine of strict necessity, the federal courts will allow the state to decide the issue first,
possibly avoiding the need for litigation in the federal court. Abstention does not involve an issue
committed to another branch of the federal government.
27. Supreme Court Review - Granted if 4+ justices vote to hear the case (virtually all cases):
Writ of Certiorari
(Permissive) (1) All cases from State court

(2) All cases from U.S. Court of Appeals

28. Supreme Court Review - (1) Appeal exist for decisions by three-judge federal district court panels
Original & Exclusive
Jurisdiction (Mandatory) (2) The Supreme Court has original and exclusive jurisdiction for suits between state governments.
29. Supreme Court Review - Generally, the Supreme Court may hear cases only after there has been a final judgment:
Final Judgment Rule
(1) of the highest state court,

(2) of a United States Court of Appeals, or

(3) of a three-judge federal district court.

30. Independent & Adequate For the Supreme Court to review a state court decision, there must not be an independent and adequate
State Grounds state law ground of decision. (e.g. A judgment that is partially based on a violation of a state Equal
Protection Clause.)

If a state court decision rests on two grounds, one state law and one federal law, 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.

If the state grounds are fully dispositive of the case and do not depend on federal case law
interpretation, federal review would be pointless because regardless of how any federal issue is
resolved, the state law grounds would support the state judgment.

But if the state grounds are not adequate to support the judgment or are not independent of federal law,
the federal courts will hear the case.

If the state court decision turns on federal grounds and is from the highest court in the state, the
Supreme Court can review the state court decision.
31. Federal Courts - Federal courts (and state courts) may not hear suits against state governments.
Sovereign Immunity
11th Amendment prohibits federal courts from hearing cases against

(1) State governments

(2) Federal agencies

32. Federal Courts - The Eleventh Amendment does not bar actions by one state government another state government.
Sovereign Immunity -
State v. State
Government Suits
33. Federal Courts - Sovereign Immunity States may be sued under the following circumstances:
Exceptions
(1) Express consent/waiver of immunity is permitted

(2) Section 5, 14th Amend. Congress cannot authorize suits against states under other
constitutional provisions.

(3) Feds v. State - The federal government may sue state governments.

(4) Bankruptcy proceedings

34. Federal Courts - State Officers Suits against State Officers are allowed if they're being:

(1) sued for injunctive relief

(2) sued for money damages to be paid out of their own pockets

(3) sued if it is the state treasury that will be paying retroactive damages
35. Federal Courts - Abstention Federal courts may not enjoin pending state court proceedings.
36. The Federal Legislative Power - Congress' (1) There must be express or implied Congressional power
Authority to Act
(2) The necessary and proper clause (implied power)

(3) The tax / spending power, and

(4) The commerce power

37. The Federal Legislative Power - The
Necessary and Proper Clause
38. The Federal Legislative Power - Express
Powers
39. The Federal Legislative Power - Express
Powers - Tax & Spending Power - President
Has No Power to Decline to Spend Funds
Congress can adopt all laws that are NECESSARY and PROPER to exercise its
express or implied authority.
Congress has the express power to:
(1) Tax and spend for the general welfare
(2) Regulate interstate commerce
The President has no power to decline to spend funds specifically appropriated by
Congress when Congress has expressly mandated that they be spent, regardless of
Congress's reason for making the appropriation.

The President has no "legislative" power in internal affairs, and has a duty under
Article II to "see that the laws are faithfully executed." In contrast, Congress clearly
has the power to spend to "provide for the common defense and general welfare."

Hence, the Supreme Court has ruled that there is no constitutional basis for the
President to "impound" (i.e., refuse to spend) funds whose expenditure Congress has
expressly mandated.
40. The Federal Legislative Power - Police Congress has no general police power, EXCEPT:
Power
1. M - Military
2. I - Indian reservations
3. L - Lands and territories (federal)
4. D - District of Columbia
41. The Federal Legislative Power - Commerce Congress can regulate commerce with:
Clause
(1) Foreign nations
(2) Indian tribes
(3) Among the several states
42. The Federal Legislative Power - The
Commerce Power - Interstate
Commerce
43. The Federal Legislative Power - The
Commerce Power - Interstate
Commerce - Substantial Impact on
Interstate Commerce
44. The Federal Legislative Power - The
Commerce Power - Interstate
Commerce - Non-economic Activity
45. The Federal Legislative Power - The
Commerce Power - Interstate
Commerce - Inactivity
46. The Federal Legislative Power - 10th
Amendment
47. The Federal Legislative Power - 10th
Amendment -
State Legislatures
48. The Federal Legislative Power - 10th
Amendment - Harmful Commercial
Behavior
49. The Federal Legislative Power - 14th
Amendment, Section 5 Power
50. The Federal Legislative Power -
Delegation of Powers
51. The Federal Executive Power
52. The Federal Executive Power - Foreign
Policy
Congress may regulate the:
(1) Channels (highways, waterways, & internet)
(2) Instrumentalities, persons, & things
(3) Activities that have a SUBSTANTIAL IMPACT on interstate commerce (e.g. farmers
growing wheat for personal use IS interstate commerce but violence against women is
NOT.)
As part of its power to regulate interstate commerce, Congress may regulate any activity,
local or interstate, which either in itself or in combination with other activities has a
substantial economic effect upon, or effect on movement in, interstate commerce.
In the area of non-economic activity, having a substantial effect on interstate commerce
cannot be based on cumulative impact (i.e. violence against women).
Five justices have said that Congress cannot regulate inactivity.
The 10th Amendment limits Congressional powers, stating that all powers not granted to
the United States, nor prohibited to the states, are RESERVED to the states or the people.
Congress CANNOT compel state regulatory or legislative action, BUT it can INDUCE
state action by placing express conditions on federal grants, so long as the conditions
relate to the purpose of the spending program and are not unduly coercive.
No federal commandeering of state and local governments.
Congress may prohibit harmful commercial activity by state governments.
(e.g. State selling personal information from DMV case)
Congress may not create new rights or expand the scope of rights. Congress may act
only to prevent or remedy violations of rights recognized by the courts and such laws
mus be "proportionate" and "congruent" to remedying constitutional violations.
(e.g. Boerne v. Flores case about congress' law to expand protection for religious
exercise)
(1) No limit on Congress' ability to delegate legislative power (always a wrong answer).
(2) Legislative and line-item vetoes are unconstitutional. For Congress to act, there
always must be bicameralism (passage by both the House and the Senate) and
presentment (giving the bill to the President to sign or veto). The President must sign or
veto the bill in its entirety.
(3) Congress may NOT delegate executive power to itself or other officers.
Executive powers include:
(1) Foreign Policy
(2) Domestic Affairs
(1) Treaties
(2) Executive Agreements
(3) Use of American troops in foreign countries
53. Executive Power - Treaties Negotiated by the President and are effective once ratified by the Senate.

The power to enter into treaties is vested in the President, and his power to act for the United States in
day-to-day foreign affairs is paramount.

Even as to foreign relations that require congressional consent, the President's powers are much
broader than in the realm of internal affairs. No significant judicial control has been exercised over
declarations to cancel treaties.
54. Executive Power - Treaties (1) State laws that conflict with treaties are INVALID.
& Conflict of Laws.
(2) If a treaty conflicts with a federal statute, the one adopted last in time controls

(3) If a treaty conflicts with the U.S. Constitution., that treaty is invalid.
55. Executive Power - An agreement between the United States and a foreign country that:
Executive Agreements
(1) is effective when signed by the President and the head of the foreign nation;

(2) can be used for any purpose, and

(3) prevail of conflicting STATE laws but never over conflicting FEDERAL laws or CONST.
56. Executive Power - Treaties
& Executive Agreements

57. Limits on the recognition It is unconstitutional for Congress by statute to designate the capitol of a foreign country.
power
58. Executive Power - War The President has broad powers as Commander-in-Chief to use American troops in foreign countries
Powers for any reason.
59. Executive Power - (1) Appointment & Removal
Domestic Affairs (2) Impeachment and removal
(3) Presidential Immunity
(4) Executive Privilege
(5) Pardons
60. Executive Power - (1) Appointment Power: The President appoints ambassadors, federal judges, and cabinet officers and
Domestic Affairs - the Senate must confirm them.
Appointment of Officers
(2) Congress may vest the appointment of INFERIOR officers in the President, heads of departments,
or lower federal courts.

(3) Congress may not give itself or its officers the appointment power

(4) The President may not make recess appointments during intrasession recesses that are less than 10
days.
61. Executive Power - The Unless removal is limited by statute, the President may fire any executive branch office.
Removal Power
62. The Removal Power - Congressional For Congress to limit removal, it must be an office where:
Limit
(1) independence from the President is desired (e.g. special prosecutor); and

(2) it can limit removal to where there is good cause shown.

63. Executive Power - Impeachment and The President, Vice President, Federal Judges and all officers of the U.S. can be impeached
Removal and removed from the office for treason, bribery, high crimes, & misdemeanors.

(1) Impeachment does not remove a person from office

(2) Impeachment requires majority of the house

(3) Removal requires 2/3 of the Senate

64. Executive Power - Immunity The President has absolute immunity to civil suits for money damages for any actions while
in office.

However, the President does not have immunity for actions that occurred prior to taking
office.
65. Executive Power - Privilege The President has executive privilege for presidential papers and conversations, but such
privilege must yield to other important government interests.
66. Executive Power - Pardons President can pardon anyone accused or convicted of a FEDERAL CRIME, except someone
impeached by the House of Representatives.

Doesn't apply to impeachment. This power only applies to federal law crimes; only for
criminal liability - not for civil including civil contempt.
67. Federalism - Preemption Supremacy Clause says that the Constitution and the laws and treaties made pursuant to it
are the SUPREME LAW OF THE LAND.

(1) Express preemption

(2) Implied preemption

(3) Intergovernmental tax immunity

68. Federalism - Express Preemption If a federal statute states that federal law is exclusive in a field, then state and local laws are
preempted.
69. Federalism - Implied Preemption Implied federal preemption exists:

(1) If federal and state laws are mutually exclusive; (but states can set stricter (i.e.
environmental) laws than the federal government unless Congress prohibits it)

(2) If state law impedes the achievement of a federal objective; or

(3) If Congress evidences a CLEAR INTENT to preempt state law (e.g. immigration)
70. Federalism - Preemption - Entire The states may regulate local aspects of interstate commerce as long as Congress has not
Area of Regulation adopted regulations concerning the subject matter or preempting the entire area of
regulation.
71. Federalism - Preemption - Negative Even absent federal legislation, under the negative implications of the Commerce Clause
Implications of the Commerce state regulation must not discriminate against interstate commerce or unduly burden it.
Clause
72. Federalism - Preemption - Field Field preemption occurs when Congress shows an intent to occupy an entire field,
Preemption thus precluding any state regulation.

If the law does not state whether state law is to be preempted, the Court will look to
the comprehensiveness of the scheme and whether Congress has created an agency
to administer over the area.
73. Federalism - Intergovernmental Immunity The states have no power to regulate the activities of the federal government unless
Congress consents to the regulation. Thus, instrumentalities and agents of the federal
government are immune from state regulations that interfere with their federal
functions.
74. Federalism - Intergovernmental Tax States may not charge state tax to be paid out of federal treasury for federal
Immunity government activity

(i.e.Mom and Pop store on federal land - can be tax; no significant burden from states
on federal government)
75. Federalism - Dormant Commerce Clause State or local laws are invalid if they place an UNDUE BURDEN on interstate
commerce. Must conduct a balancing.

(e.g. Ban on out-of-state baitfish is permissible.)

76. Federalism - Privileges & Immunities Two Sources:

(1) Privileges and immunities under Art. IV

(2) Privileges or immunities under the 14th Amend.
77. Federalism - Art. IV Privileges & Immunities No state or municipality may deny citizens of other states the privileges and
immunities it AFFORDS ITS OWN CITIZENS without SUBSTANTIAL JUSTIFICATION.

(e.g. can't require residency to sit for the bar)

78. Federalism - 14th Amend. Privileges or Guarantees a PERSON'S (not citizens) right to travel from one state to another.
Immunities
The Fourteenth Amendment Privileges or Immunities Clause prohibits states from
denying their citizens the privileges or immunities of national citizenship, including
the right to interstate travel.

The right to travel includes the right of newly arrived citizens of a state to enjoy the
same privileges and immunities as are enjoyed by other citizens of the state.

(Exam Tip: Always a wrong answer unless the question involves the right to travel)
79. Federalism - Discrimination Against Out-of- Unconstitutional UNLESS it is:
Staters & Burdens Interstate Commerce
(1) necessary to achieve an important government purpose; and

(2) government must show that no less discriminatory method can achieve its goal

(e.g. In-state college tuition)

80. Federalism - Discrimination Against Out-of-
Staters & Burdens Interstate Commerce -
Analysis where the law does not
discriminate
Analysis if the law does not discriminate
(1) The privileges and immunities clause of Article IV does not apply
(2) If the law burdens interstate commerce, it violates the dormant commerce clause
if its burdens exceed its benefits (even if the law is non-discriminatory)
81. Federalism - Discrimination Against Out-of- If the law burdens interstate commerce, it violates the dormant commerce
Staters & Burdens Interstate Commerce - clause unless it is necessary to achieve an important government purpose
Analysis where the law does discriminate (protectionist policies are insufficient justification)

Except:

(1) Congressional approval

(2) The market participation exception: A state or local government may prefer
its own citizens in receiving benefits from government programs or in dealing
with government-owned businesses.
82. Federalism - Discrimination Against Out-of- A state may prefer its own citizens when acting as a market participant (e.g.,
Staters & Burdens Interstate Commerce - Market when buying or selling, hiring labor, or giving subsidies).
Participant Exception
83. Federalism - Out of State Discrimination & If the law discriminates against out-of-staters with regard to their ability to earn
Earning a Living a living, it violates the privileges and immunities clause of Art. IV unless it is
necessary to achieve an important gov't purpose.

(1) The law must discriminate against out-of-staters.

(2) The discrimination must be with regard to fundamental rights or important

economic activities

(3) Corporations & aliens cannot use or invoke privileges and immunities (only
DCC)

(4) The discrimination must be necessary to achieve an important gov't purpose

(e.g. commercial fishing is earning a living but elk hunting is a hobby.)

84. Dormant Commerce Clause/Privileges and
Immunities Clause of Article IV

85. Comparison of the Dormant Commerce Clause

and the Privileges and Immunities Clause of
Article IV

86. Federalism - State Taxation of Interstate (1) States may not use their tax systems to help in-state businesses
Commerce preferentially.

(2) A state may only tax activities if there is a substantial nexus between the
product or activity to the taxes and the state.

(3_ State taxation of interstate business or companies must be fairly

apportioned.
87. Federalism - Courts in one state must enforce all judgment of courts in another state if:
Full Faith &
Credit (1) there was personal & subject matter jurisdiction

(2) the judgment was on the merits

(3) the judgment was final.

88. Individual (1) The Constitution applies only to government action, not private conduct.
Liberties - Is
there (2) Congress can enact statutes to regulate private conduct.
Government
Action? (3) Exceptions: Situations where private conduct must comply with the Constitution
89. Individual (1) The 13th Amend. prohibits slavery (irrespective of gov't/private action) & pursuant statutes prohibit private race
Liberties - discrimination.
Statutes
Regulating (2) Under the Commerce Clause, Congress can regulate private conduct (e.g. Civil Rights Act of 1964).
Private
Conduct (3) Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior
90. Individual Situations where private conduct must comply with the Constitution:
Liberties -
Exceptions (1) The public functions exception: The Consititution applies if a private entity performs a function usually done by the
government

(2) The entanglement exception: The Consititution applies if the government affirmatively authorizes, encourages, or
facilitates unconstitutional activity.
91. Individual Education has never been considered to be an exclusively public function.
Liberties -
Exceptions -
Public
Function -
Education
92. Individual Licensing by the state and receipt of state funds do not constitute significant state involvement with regard to its
Liberties - personnel matters.
Government
Employee -
State Action
- Funding
93. Individual Even a public school probably could fire a teacher for his speech (if its termination procedures were otherwise
Liberties - proper).
Government
Employee - Because public schools generally are not public forums, reasonable restrictions based on legitimate pedagogical
Speech - concerns rather than the content of the speech are permissible.
Public
School (For example, a school reasonably could argue that urging the students to organize a protest against a school policy
would disrupt discipline and interfere with its educational process. If a teacher is fired by a public school, he would
be able to claim a property right in his employment for the balance of his contract. The school probably would have
had to provide him with a pretermination opportunity to respond to the charges against him. If a teacher instead been
an employee-at-will, without a contract, he would have had no property interest in continued employment even if his
employer had been a public school.)
94. Individual Liberties - The (1) Courts cannot enforce racially restrictive covenants.
Entanglement Exception
Examples (2) There is state action when the government leases premises to a restaurant that racially
discriminates.

(3) There is state action when a state provides books to schools that racially discriminate.

(4) There is no state action when a private school that is over 99% funded by the government
fires a teacher because of her speech.

(5) There is no state action when the NCAA orders the suspension of a basketball coach at a
state university.

(6) There is state action when a private entity regulates interscholastic sports within a state.

(7) There is not state action when a private club with a liquor license from the state racially
discriminates.
95. Individual Liberties - State Action The Fourteenth Amendment Due Process Clause, which makes many of the provisions of the
- 14th Amendment Due Process Bill of Rights applicable to the states, does not apply to purely private conduct that interferes
Clause with these rights.

Thus, unless the private individual

(i) was performing exclusively public functions, or

(ii) took actions with significant state involvement,

the individual's action is not unconstitutional.

96. Individual Liberties - Application (1) Applies directly only to the Federal Gov't
of Bill of Rights
(2) Applies to state and local governments through its incorporation into the due process
clause of the 14th Amend.
97. Individual Liberties - Bill of Rights Amendments NOT enforceable against state and local gov'ts:
Exceptions
- 3rd Amend. right to not have to quarter soldiers in your own home

- 5th Amend. right to grand jury indictment in ALL criminal cases

- 7th Amend. right to a jury trial in civil cases

- 8th Amend. right against excessive fines.

98. Individual Liberties - Levels of
Scrutiny

1. Rational Basis
2. Intermediate Scrutiny
3. Strict Scrutiny
99. Individual Liberties - Rational Basis A law is upheld if it is RATIONALLY RELATED TO A
LEGITIMATE GOVERNMENT PURPOSE.

Challenger has the burden of proof

100. Individual Liberties - Intermediate Scrutiny A law will be upheld if it is SUBSTANTIALLY RELATED
TO AN IMPORTANT GOVERNMENT PURPOSE.

Government has the burden of proof.

101. Individual Liberties - Strict Scrutiny A law will be upheld if it is NECESSARY TO ACHIEVE
A COMPELLING GOVERNMENT PURPOSE.

The government has the burden of proof.

102. Individual Rights (1) Procedural Due Process (notice, hearing, etc.)

(2) Substantive Due Process (adequate justification for

the government to take away life, liberty, or property?)

(3) Equal Protection (Difference in treatment of people

adequately justified?)
103. Procedural Due Process - Has there been a deprivation of life, liberty, (1) A deprivation of liberty occurs if there is the loss of
or property? a significant freedom provided by the Constitution or a
statute.

(2) A deprivation of property occurs if there is an

entitlement and that entitlement is not fulfilled
104. Procedural Due Process - Has there been a deprivation of life, liberty, • Except in an emergency, for an adult to be
or property? Examples institutionalized there must be notice and hearing

• When a parent institutionalizes child, just a screening

by neutral fact-finder

• Harm to reputation not enough for deprivation of

liberty claim

• Prisoner rarely have liberty interests - usually lose

105. Procedural Due Process - Has there been a deprivation of life, liberty, Government negligence is not sufficient for a
or property? - Government Negligence deprivation of due process.

Generally, there must be intentional government action

or at least reckless action for liability to exist.

However, in emergency situations, the government is

106. Procedural Due Process - Has there been a deprivation of life, liberty,
or property? - Government's Failure to Protect People from Privately
Inflicted Harms
liable under due process only if its conduct "shocks the
conscience."
Generally, the government's failure to protet people
from privately inflicted harms does not deny due
process.

Except where the person is in the government's

custody or where the government literally creates the
danger.
107. Due Process - Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of
Government Employee specific rights provided by the Constitution, including freedom of speech.
Speech - Public Issues
A government employee may not be fired for expressing his views regarding public issues, but can be
fired for speech that disrupts the employer's policies or undermines the employer's authority.

Under the Court's expansive interpretation of what a public issue is in this context, the accountant's
statement would probably qualify. At the very least, he can make enough of a showing that his termination
violates his free speech rights to be entitled to a hearing on the issue under procedural due process
principles.
108. Procedural Due 1. Life (self explanatory)
Process - Takings 2. Liberty - significant Const. freedom
3. Property
109. Procedural Due Not a loss of liberty, therefore not a taking.
Process - Harm to
Reputation
110. Procedural Due Prisoners have very few liberties, therefore there is rarely a taking.
Process - Prisoners
111. Procedural Due For a taking to be unconstitutional, Government must act INTENTIONALLY or RECKLESSLY - negligence is
Process - Takings insufficient.
Intent
EXCEPTION: In an emergency situation the gov't is liable ONLY IF its conduct SHOCKS THE
CONSCIENCE.
112. Procedural Due (1) The importance of the interest to the individual
Process - Procedure
Balancing Test (2). The ability of additional procedures to increase the accuracy of the FACT-FINDING

(3) The government's interest in efficiency and saving money.

113. Procedural Due Notice & Hearing
Process - Welfare
Benefits
114. Procedural Due Notice & Hearing
Process - Parental
Custody Termination
115. Procedural Due Notice & Hearing
Process - Adult
Institutionalizing
116. Procedural Due Post-termination Hearing
Process - Terminating
Social Security
Benefits
117. Procedural Due Jury instructions to guide discretion & judicial review to ensure reasonableness. Grossly excessive
Process - Punitive damages violate due process
Damage Awards
118. Procedural Due The ability to challenge continued detention.
Process - Non-citizen
held as an enemy
combatant
119. Procedural Due Habeas corpus petition in federal court.
Process - U.S. citizen
held by American
military abroad
120. Procedural Due Process Chart
121. Substantive Due Process
122. Substantive Due Process - 5th Amendment -
Takings Clause
123. Substantive Due Process - 5th Amendment -
Property Takings
124. Property Takings - Analysis
125. Property Takings - 5th Amendment -
Decrease in Value of Property Due to
Government Regulation
126. Property Takings - 5th Amendment -
Decrease in Value of Property Due to
Government Regulation - Analysis
(1) Economic rights - rational basis
(2) Property rights - 5th Amendment takings clause - just compensation
(3) Contract rights
(4) Privacy
The gov't may take private property for PUBLIC USE only if it provides JUST
COMPENSATION.
(1) Possessory taking: Government confiscation or physical occupation of property
is a taking.
(2) Regulatory taking: Government regulation is a taking if it leaves no reasonable
economically viable use of the property.
(1) Is there a taking?
(2) Is it for public use?
(3) Is just compensation paid? (measured in terms of loss to the owner)
If a government regulation denies a landowner all economic use of his land, the
regulation generally will constitute a "taking" requiring the payment of "just
compensation" under the Fifth Amendment.
However, regulations that merely decrease the value of property do not
necessarily result in a taking as long as there remains an economically viable use
for the property.
The court will consider
(i) the social goals sought to be promoted,
(ii) the diminution in value to the owner, and
(iii) whether the regulation substantially interferes with distinct, investment-backed
objectives.
127. Substantive Due (1) Government conditions on development of property must be justified by a benefit that is roughly
Process - Property proportionate to the burden imposed; otherwise, it is a taking
Takings - Rules
(2) A property owner may bring a takings challenge to regulations that existed at the time the property was
acquired

(3) Temporarily denying an owner use of property is not a taking so long as the government's action is
reasonable.
128. Substantive Due It is public so long as the gov't acts out of reasonable belief taking will benefit public (including private
Process - Public development)
Use
129. Substantive Due Fair market value only.
Process - Just
Compensation
130. Substantive Due No state or local gov't shall impair the obligations of contracts.
Process - Contract
Rights (1) Applies only to state or local interference with existing contracts.

(2) State or local interference with private contracts must meet intermediate scrutiny

(a) Does the legislation substantially impair a party's rights under an existing contract?

(b) If so, is the law a reasonable and narrowly tailored means of promoting an important and legitimate public
interest?

(3) State or local interference with government contracts must meet strict scrutiny.

(4) The ex post facto clause does not apply in civil cases. (An ex post facto law is a law that criminally
punishes conduct that was lawful when it was done or that increases punishment for a crime after it was
committed). Retroactive civil liability only need meet a rational basis test.

(A bill of attainder is a law that directs the punishment of a specific person or persons without a trial.)
131. Substantive
Due
Process -
Privacy
Rights

Strict scrutiny:

1. Marry
2. Procreate
3. Have custody of own child
4. Maintain extended family
5. Control upbringing of children
6. Purchase and use contraceptives
7. Vote
8. Right to travel

Undue Burden Test:

9. Abortion

Level of scrutiny unknown:

10. Private consensual same-sex activity

11. Refuse medical treatment
12. Bear arms
132. Substantive Prior to viability, states may not prohibit abortions but may regulate abortions so long as they do not create an undue
Due burden on the ability to obtain abortions.
Process -
Abortion Examples:

(1) a requirement for a 24 hour waiting period for abortions is not an undue burden.

(2) a requirement that abortions be performed by licensed physicians is not an undue burden

(3) the prohibition of "partial birth abortions " is not an undue burden.

(4) a requirement that physicians have admitting privileges at a hospital within 30 miles and that a facility have
"ambulatory surgical facilities" is an unconstitutional undue burden

After viability, states may prohibit abortions unless necessary to protect the woman's life or health.
133. Substantive (1) The government has no duty subsidize abortions or provide abortions in public hospitals.
Due
Process - (2) Spousal consent and notification laws are unconstitutional.
Abortion
Cont (3) Parental notice and consent laws for unmarried minors. A state may require parental notice and/or consent for an
unmarried minor's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by
going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is
mature enough to decide for herself
134. Right to Privacy - Gay Sex The right to privacy protects a right to engage in private consensual homosexual activity.
135. Right to Privacy - The right The right to refuse medical treatment:
to refuse medical treatment
(1) Competent adults have the right to refuse medical treatment, even life-saving medical treatment.

(2) A state may require clear and convincing evidence that a person wanted treatment terminated
before it is ended.

(3) A state may prevent family members from terminating treatment for another.
136. Right to Privacy - Assisted There is not a constitutional right to physician-assisted death.
Suicide
137. The second amendment "A well-regulated militia, being necessary to the security of a free state, the right of the people to
right to bear arms keep and bear arms shall not be infringed."

(Not absolute right. The government may regulate who, how, when, where, type of guns. Can have
guns at least in their homes for safety)
138. The right to travel (1) Laws that prevent people from moving into a state must meet strict scrutiny

(2) Durational residency requirements must meet strict scrutiny

(3) Restrictions on foreign travel need meet only the rational basis test
139. The right to vote (1) Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the
electoral process to prevent fraud only need be on balance desirable

(2) One-person-One-vote must be met for all state and local elections. It is constitutionally
permissible for districting to be based on total population; it does not need to be based on eligible
voters

(3) At-large elections are constitutional unless there is proof of a discriminatory purpose

(4) The use of race in drawing election district lines must meet strict scrutiny

(5) Counting uncounted votes without standards in a presidential election violates equal protection
140. Right to Education There is no fundamental right to education
141. Equal Protection Whenever the Gov't draws a distinction among people
142. Equal Protection - Analysis

1. What is the classification?

2. What level of scrutiny should be applied?
3. Does the law meet the level of scrutiny?
143. Equal Protection - 1. 14th Amend. applies only to state and local governments.
Constitutional
Provisions 2. Federal government liable under the due process clause of the 5th Amend.
144. Equal Protection - Classifications based on race, alienage, and national origin get STRICT SCRUTINY.
Race
145. Equal Protection - 1. Classification exists on the FACE OF THE LAW.
Existence of Racial
Classification 2. If the law is race-neutral then P must demonstrate discriminatory impact AND intent

(Example: discriminatory use of peremptory challenges based on race denies equal protection)
146. Equal Protection - 1. Strict Scrutiny is applied
Racial Benefits
2. Numerical set-asides require CLEAR PROOF OF PAST DISCRIMINATION

3. Public education may use race as ONE FACTOR in admissions decisions. They must show, however, that
there is no race-neutral alternative which could achieve diversity. Additionally, educational institutions may
not add points to applicants' admissions scores based on race.

4. Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is
met.
147. Equal Protection - Intermediate scrutiny - EXCEEDINGLY PERSUASIVE JUSTIFICATION
Gender
148. Equal Protection - 1. Face of the law
Gender
Classifications 2. If the law is neutral on its face, then P must prove Discriminatory impact AND discriminatory intent.
149. Equal Protection - 1. Gender classifications benefiting women based on STEREOTYPES will not be allowed (strict scrutiny).
Benefiting Women
2. Classifications that are designed to remedy past discrimination will be allowed.
150. Equal Protection - Generally, laws that discriminate against non-citizens must meet STRICT SCRUTINY.
Alienage
(e.g. denying welfare unconstitutional)
151. Equal Protection - These privileges may be reserved just for citizens:
Alienage RBT
Exceptions 1. Voting
2. Jury duty
3. Police officer
4. Probation officer
5. Teacher
152. Equal Protection - When Congress discriminates against aliens, only RATIONAL BASIS applies.
Alienage &
Congress
153. Equal Protection - Intermediate scrutiny.
Alien Children
154. Equal Protection - Intermediate scrutiny
Non-marital
children Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional
155. Rational basis 1. Age discrimination
review 2. Disability discrimination
3. Wealth discrimination
4. Economic regulations
5. Sexual orientation discrimination
156. Equal Protection - Age Discrimination
157. Equal Protection - Disability
158. Equal Protection - Wealth Discrimination
159. Equal Protection - Sexual Orientation
160. 1st Amend.
161. 1st Amend. - Speech: Conduct vs. Content
162. To pass constitutional muster under the First
Amendment, a statute or ordinance that burdens
speech based on its content generally must be:
163. 1st Amend. - Speech: Content
164. Prior Restraints - 1st Amendment - Speech: Court
Orders
165. 1st Amend. - Speech: Speech License
166. 1st Amend. - Speech: Vagueness
167. 1st Amend. - Speech: Fighting Words
168. 1st Amend. - Speech: Overbreadth
169. If a regulation of speech is found to be
overbroad, but judged in relation to its plainly
legitimate sweep it does not prohibit a
substantial amount of protected speech, may it
be enforced?
170. 1st Amend. - Speech: Symbolic Speech
Rational basis
Rational basis
e.g. Zoning to prevent home for mentally disabled still unconstitutional under
rational basis (Texas)
Rational basis - poverty not a suspect class
Rational basis (though this may be changing)
1. Speech
2. Association
3. Religion
A regulation that controls the CONTENT of speech is less likely to be upheld
than a regulation of CONDUCT incidental to speech.
...
Content-based restriction must meet STRICT SCRUTINY
(1) Subject matter restrictions (application of the law depends on the topic of
the message i.e. violence)
(2) Viewpoint/ideology restrictions (application of the law depends on the
ideology of the message)
Content-neutral regulations burdening speech need to meet intermediate
scrutiny.
Court orders restricting speech must meet strict scrutiny
(1) A procedurally proper court order must be complied with until it is vacated
or overturned. A person who violates gag order is barred from challenging it.
(2) Gag orders on the press to prevent prejudicial pretrial publicity are not
allowed.
The government can require a license for speech only if there is an important
reason for licensing and clear criteria leaving almost no discretion to the
licensing authority. Licensing schemes must contain procedural safeguards
such as prompt determination of requests for licenses and judicial review
A law is unconstitutionally vague if a reasonable person cannot tell what
speech is prohibited and what is allowed.
Words intended to provoke physical violence are NOT protected, but statutes
attempting to punish fighting words are often found to be vague and
overbroad.
A law is unconstitutionally overbroad if it regulates substantially more speech
than the constitution allows to be regulated.
...
The gov't 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 government's goal
171. 1st Amend. - Speech: Flag Protected
Burning
172. 1st Amend. - Speech: Draft Card Not protected
Burning * Gov't has a need to mobilize troops
173. 1st Amend. - Speech: Nude Not protected
Dancing
174. 1st Amend. - Speech: Cross Protected UNLESS there it threatens or intimidates others.
Burning
175. 1st Amend. - Speech: Campaign Limits on contributions to election campaigns are ALLOWED, BUT Expenditure limits on
Contributions campaigns are NOT allowed.
176. 1st Amend. - Speech: Anonymous speech is protected
Anonymous Speech
Exception: Ballot petitions
177. 1st Amend. - Speech: Not 1. Incitement of illegal activity. The government may punish speech if there is a substantial
Protected likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

2. Obscenity & Sexually Oriented speech (but not mere possession)

3. Zoning ordinances to regulate adult bookstores

4. Child porn (including possession)

5. Fighting words

6. Advertising for illegal activity

7. Deceptive advertising

8. Defamation
178. 1st Amend. - Speech: Obscenity (1) The material must appeal to the prurient interest (local standard)
& Sexually Oriented speech Test
(2) The material must be patently offensive under the law prohibiting obscenity

(3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or
scientific value (national standard)

(4) The government may seize the assets of businesses convicted of violating obscenity laws
179. 1st Amend. - Speech: Profane Profane and indecent speech is generally protected by the First Amendment
and Indecent Speech
Exceptions:

(1) over the broadcast media

(2) in schools
180. 1st Amend. - Speech: Advertising for illegal activity and false and deceptive ads are not protected by the First Amendment
Commercial speech
True commercial speech that inherently risks deception can be prohibited

(1) The government may prevent professionals from advertising or practicing under a trade name

(2) The government may prohibit attorney, in-person solicitation of clients for profit

(3) The government may not prohibit accountants from in-person solicitation of clients for profit

Other commercial speech can be regulated if intermediate scrutiny is met

Government regulation of commercial speech must be narrowly tailored, but it does not need to be
the least restrictive alternative.
181. 1st Amend. - Speech:
Defamation and IIED

Public Official, Candidate or public figure: Falsity & malice

Private Figure & Public Concern: Falsity & Negligence (However, the plaintiff may recover presumed
or punitive damages only by showing actual malice)

Private Figure Only: Falsity only (the plaintiff can recover presumed or punitive damages without
showing actual malice)

Liability for intentional infliction of emotional distress for defamatory speech must meet the
defamation standards and cannot exist for speech otherwise protected by the first amendment
182. 1st Amend. - Speech: (a) The government may not create liability for the truthful reporting of information that was lawfully
Privacy obtained from the government

(b) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media
did not participate in the illegality and it involves a matter of public importance

(c) The government may limit its dissemination of information to protect privacy
183. 1st Amend. - Speech: Speech by government employees on the job in the performance of their duties is not protected by
Government Employees the First Amendment.
184. 1st Amend. - Speech: Other government restrictions based on the content of speech must meet strict scrutiny.
Content-Based
Restrictions Example: Restrictions on violent speech must meet strict scrutiny.
185. 1st Amend. - Speech: 1. Public forums
Public Places 2. Designated public forums
3. LImited Public Forums
4. Non-public forums
186. 1st Amend. - Speech: Public Forums Public forums-government properties that the government is constitutionally
required to make available for speech.

Regulations:

(1) Must be subject matter and viewpoint neutral or if not, strict scrutiny must be met.

(2) Must be a time, place, or manner regulation that serves an important government
purpose and leaves open adequate alternative places for communication.

(3) Need not be the least restrictive alternative, but must be narrowly tailored

(4) City officials cannot have discretion to set permit fees for public demonstrations
187. To be valid, a time, place, and manner ...
regulation of a limited public forum must be:
188. 1st Amend. - Speech: Designated Public Government properties that are chosen to be left open to speech (school facilities).
Forums
Same rules as public forums.
189. 1st Amend. - Speech: Limited Public Forums Government properties that are limited to certain groups or dedicated to the
discussion of only some subjects.

The government can regulate speech in limited public forums so long as the
regulation is reasonable and viewpoint neutral.
190. 1st Amend. - Speech: Non-public Forums Government properties that the government constitutionally can and does close to
speech.

The government can regulate speech in non-public forums so long as the regulation
is reasonable and viewpoint neutral.

(Examples: Military bases; areas outside prisons and jails, sidewalks on post office
property, airports)
191. 1st Amend. - Speech: Private Property There is no First Amendment right of access to private property for speech purposes
192. Places Available For Speech

193. 1st Amend - Free Exercise Clause Prohibits the govt from punishing someone on the basis of the person religious
beliefs.
194. Freedom of association - Laws Prohibiting
or Punishing Group Membership
195. Freedom of association - Laws Requiring
Disclosure of Group Membership
196. Freedom of association - Laws Prohibiting
a Group from Discriminating
197. ...
198. Freedom of Religion - The free exercise
clause
199. Freedom of Religion - The Establishment
Clause
200. Freedom of Religion - The Establishment
Clause - Discrimination Against Religious
Speech
201. Freedom of Religion - The Establishment
Clause - Government Sponsored
Religious Activity
202. Freedom of Religion - The Establishment
Clause - Parochial Schools
Laws that prohibit or punish group membership must meet strict scrutiny, To punish
membership in a group it must be proven that the person:
(a) actively affiliated with the group;
(b) knowing of its illegal activities; and
(c) with the specific intent of furthering those illegal activities.
Laws that require disclosure of group membership, where such disclosure would chill
association, must meet strict scrutiny.
Laws that prohibit a group from discriminating are constitutional unless they interfere
with intimate association or expressive activity.
states can regulate general conduct even if it interfers with the Free Exercise Clause
unless its neccessary to promote a compelling interest
(a) The free exercise clause cannot be used to challenge a neutral law of general
applicability.
(b) The government may not deny benefits to individuals who quit their jobs for
religious reasons.
(c) The government may not hold a religious institution liable for the choices it makes
as to who will be its ministers.
The test:
(i) there must be a secular purpose for the law
(ii) the effect must be neither to advance nor inhibit religion
(ii) there must not be excessive entanglement with religion.
The government cannot discriminate against religious speech or among religions
unless strict scrutiny is met.
Government-sponsored religious activity m public schools is unconstitutional. But
religious student and community groups must have the same access to school facilities
as non-religious groups
The government may give assistance to parochial schools, so long as it is not used for
religious instruction.
The government may provide parents vouchers which they use in parochial schools.
203. Freedom of A state adopted a statute making the ritual slaughter of chickens illegal. The legislative debates made clear that
Religion - the purpose of the statute was to prevent unnecessary cruelty to animals. The religious leader of a church located
Example - within the state, whose core religious beliefs require ritual slaughter of chickens during worship services, brought
State Statute suit to have the statute declared unconstitutional for violating her right to practice her religion.
Prohibiting
Ritual How will the court likely rule?

Invalidate the statute because it targets only ritual slaughter.

(The First Amendment provides that the free exercise of religion shall not be abridged; however, the prohibition is
far from absolute. The Supreme Court has stated that the amendment prohibits the government from outlawing
religious beliefs and it has struck down a statute similar to the one here that outlaws conduct merely because it is
religious (i.e., ritual slaughter of chickens is prohibited but not other instances of chicken slaughter), at least when
the law is not necessary to achieve a compelling interest.)
204. Approach to
Constitutional
Law Question

205. Unemploymnet If a person resigns from a job or refuses to accept a job becasue it conflicts with her religious beliefs, the state
Compensation must pay her unemployment compensation if she is otherwise entitled
Cases - Some
Exemptions
Required
206. Freedom of "I cant cant conform!!" Um dont think so,
Religion -
Generally no Examples
Exemptions
Required - a prohibiton against the use of peyote

- denial of tax-exempt status to schools that discriminate on the basis of race

- requirement that employers comply with federal minimum wage laws

- requirement that employers pay Social Security taxes

- Sales and use taxes as applied to sales of goods and literature by religious groups
207. Need Not All that is required is the person sincerly hold religous beliefs that prevent him from working a certain day or on
Belong to military products
Formal
Religious
Organization
208. Right of Amish SCOTUS decided that Amish were productive and law abiding citizens and ruled they have a right to educate
Not to Educate one's children. Free Exercise Clause outweighed state interest
Children
209. Limitation - Can't disregard criminal laws due to religious beliefs, so unemployment comp laws may disqualify someone for
Criminal misconduct including violation of criminal law (using Peyote)
Prohibitions
210. 1ST Amend - Establishment Clause Prohibits laws respecting the establishment of religion
211. Establishment Clause - No Sect Government action is valid if:
Preference (Lemon Test )
(i) has a secular purpose

(ii) has a primary effect that neither advances nor inhibits religion; and

(iii) does not produce excessive government entanglement with religion

212. Sect Preference Compelling Interest Test applies: To be valid, the law or program must be narrowly
tailored to promote a compelling interest.

Governmental action that does not contain a sect preference will pass muster under the
Establishment Clause if:

(1) it has a secular purpose,

(2) its primary effect neither advances nor inhibits religion, and

(3) it does not require excessive government entanglement with religion.

213. Establishment Clause Cases Gropued (a) Cases Unconnected to Financial Aid or Education
into 3 Categories
(b) Cases Involving Financial Benefits to Church-Related Institutions

(c) Cases Concerning Religious Activites in Public Schools