I. Powers of fed govt.
A. Judicial power
1. article I
a. tax courts etc.
2. article
a. subject matter and party jurisdiction requiriements and
b. case or controversy requirement
3. SC jurisdiction
a. original jurisdiction
1) ambassadors, public ministers, state party
b. concurrent jurisdiction
1) cases in lower fed courts
2)
c. appellate jurisdiction
1) federal power
a) writ of certiorari-
(i) SC discretion if
(1) state courts
(i) constitutionality of fed/state statute or treaty.
(ii) State statute allegedly violates federal law
(2) Cases from Federal courts of appeal
b) Appeal
(i) MUST if decision three judge fed district court re: injunctive relief.
4. jusrisdictional limitations
a. only case and controversy
1) no advisory opinions (dicta)
a) specific present harm or
b) real and immediate danger
2) Ripeness-
a) Actual harm or immediate threat of harm NOT BEFORE
3) Mootness NOT AFTER
a) Real controversy
b) Exceptions-
(i) capable of repetition but evading review
(ii) Class Action (ok if rep is moot, if other members are not)
(iii) Continuing issues- collateral damage (criminal conviction and served time, but still effects)
(iv) Voluntary cessation of activities by D (if reasonable possibility return to old ways) applied strictly
b. Standing (ONLY ALLOWS INTO COURT NOT MERITS)
1) Injury (direct, personally, need not be economic)
2) Causation
3) Redressability CAN HELP
4) Common issues/special cases
a) Congress can’t grant exception
b) But federal statute can create new interestes or injuries.
c) Govt statutes
(i) Ok if within zone of interest (congress intended to protect)
d) 3rd party rights if
(i) P has standing of own
(ii) Difficult for 3rd party to do it
(iii) Special relationship between 3rd party and P
e) Organizations
(i) If injury in fact to members that gives members standing. And
(ii) Injury relates to organizations purpose and
(iii) Individual member participation in lawsuit is not required.
f) CITIZENSHIP- NO
g) TAXPAYER-
(i) Standing for own tax bill but NOT general govt spending.
(ii) BUT ok for spending cases on establishment clause.
h) Legistator
(i) Ok for personal /concrete injury
(ii) NOT special standing for statutes or laws passed that they didn’t agree with even if vote no
5. SC review of state ct judgements
a. Federal law issue
b. After state court done with it
1) Final judgment
2) Highest st court that could review
c. Adequate and independent state grounds
1) NOT If state court judgment is based on adequate and independent state law grounds (even if federal issues involved).
a) Independent if based only in state law
b) Adequate is outcome same regardless
c) Must be indicated in decision
d. Abstention
1) Fed ct abstain temporarily if decision rests on unsettled question of state law
2) Fed ct not enjoin pending state cases
e. Political questions
1) NO
2) List
a) Republican form of govt clause
b) Foreign affairs/military/treaties
c) Impeachment procedure
d) Requirements of members of congress (age, citizenship, residency
e) Delegates to national political convention
f) Procedures to amend constitution
3) Are issues constitutionally committed to another branch or
a) Congressional requirements
b) President foreign policy
4) Incapable of judicial resolution
6. 11th amendment limits on federal courts
a. RULE; Federal courts barred from hearing private party or foreign govt claim against state govt.
1) Where state named party or state will have to pay.
2) Doesn’t apply
a) OK local govt, fed gov, bankruptcy
3) Exceptions
a) State consents
b) Congress can remove based on 14th amendment but needs to be clear.
c) State officers
(i) Actions to enjoin future conduct (fed/con law) OK
(ii) Actions for damage against officers personally OK
B. Legislative power
1. congress doesn’t have police power (to act for the general welfare)
2. express and implied- all express plus “necessary and proper to carry out express.
a. Express
1) Admiralty
2) Citizenship
3) Bankruptcy
4) Fed. property
5) Patents, copyright
6) Post offices
7) Coining money
8) Territories and
9) War
10) Raising and supporting armies
b. necessary and proper “power”- must be in connection with another federal power.
1) SC says necessary and proper is whatever is useful and convenient.
c. taxing power
1) ok if so long as raises some revenue (ok even if regulates).
2) NOT exports to foreign countries.
d. spending power
1) for general welfare
2) doesn’t violate ind. Liberties
3) condition reasonably related to legitimate fed interest
4) clear that condition is Quid Pro Quo (usually strongest arguemetn for state)
e. commerce power
1) exclusive power to regulate ((rules, rates, promoting, prohibiting, punishing..)
2) test
a) regulate channels of interstate commerce
b) regulate the instrumentalities of interstate commerce (persons/things)
c) regulate activities that have a substantial effect on interstate commerce.
(i) Intrastate activity
(1) Ok if economic or commercial activity and
(2) Rational basis that activity in aggregate substantially affects interstate commerce. OR
(3) Facts to show substantially economic effect on interstate commerce.
3) Alternatives: if violate commerce clause
a) Congress can regulate if state or local govt is directly engaging in act
b) Threaten with preemption if they don’t do it
c) Bribe states with money
f. war and related power
1) economic regulation during war (post war) to remedy wartime disruptions OK
2) military courts and tribunals
a) ok to make rules for govt and regulation of armed forces
b) judicial review
(i) article
(ii) enemy combatants ok tried in military courts
(iii) American soldiers
(1) Military courts jurisdiction over all offenses committed by persons who are members of the armed forces.
3. other
a. 13th am. Outlaws slavery , congress power to regulate effects
b. 14th amd. Equal protect and due process OK if laws
1) Directed against state and locl govt
2) To remedy violations of 14th (or very likely violations)
c. 15th am. Protects right to vote and prevent discrimination. Congress power to enforce
4. delegation of legislative power
a. ok
b. but can’t retain veto right (unless completely new law)
c. must have principles or standards to guide agency.
d. EXAM TIP; “(agency) acting within scope of fed. statute”
5. Speech and debate clause
a. Immunity for federl legislators
1) For discussion or formal duties (speech to congress, etc.)
2) Narrowly applied, ..example printing and distributing speech
6. federal veto of executive actions invalid
C. Executive Power
1. domestic
a. appointment and removal, in connection with congress (but president only one who can directly appoint and remove).
1) Prinicipal – with advice and control of senate
2) Inferior
a) Congress may vest in president alone or dept heads or judiciary
b. pardons EXCLUSIVE, NO LIMITS
c. veto power
1) NO line item veto
d. power as executive chief
e. also must carry out/enforce laws of congress (MUST)
2. foreign
a. war-
1) Congress declares and finances
2) Pres commander in chief
3) Pres repel invasions
4) Pres emergency to protect us citizens (life or prop)
b. foreign relations- policy spokesperson ONLY PRES
c. treaty power
1) treaty 2/3 senate approval
2) executive agreement, congress must not disapprove (ok silent)
3) conflict? Treaty v. congressional legislation (legislation wins)
d. executive agreements
3. executive privilege/immunity
a. privilege
1) presumption of presidential privilege NOT to disclose pres communications (balancing test need v. privilege)
b. immunity
1) Pres absolutely immune from civil damages for pres acts (NOT BEFORE<>
4. impeachment
a. process house accuse, senate trial, out of office immediately
II. The federal system
A. Spheres of fed and state powers
1. Exclusive fed powers
a. power of states expressly limited
b. inherent federal powers
2. exclusive state powers and local
a. YES police power
b. Here constitution doesn’t authorize, only limits
1) Can’t enter compacts together with another state
2) Not regulate what is inherently federal
a) Citizen
b) Immigration
c) War military action
3. concurrent federal and state power- effect of supremacy clause
a. conflict between state and federal laws
1) Fed law wins if incompatible
a) Express (in fed statute)
b) Implied (can’t comply with both at same time)
b. State prevents achievement of fed. objective
c. preemption
1) Express
2) So regulated it covers field
4. Absence of fed. and state powers
5. Interstate compact clause
6. Full faith and credit clause
a. Must give full faith and credit to laws from other states
B. Intersovereign litigation
1. suits by
2. suits by a state against
3. Federal officer as D
a. Limitation
b. Specific relief
4. state v. state
C. intergovernmental tax and regulation immunities
1. federal taxation and regulation of state or local govts.
a. Tax or regulation applying to both state and private entities- valid
b. Tax or regulation applying only to states
c. Commandeering state officials
2. state taxation and regulation of federal government
D. privileges and immunities clauses
1. article IV- privileges of state citizenship
a. Protection against discrimination by states (because of state citizenship) applies to
1) Civil liberties
2) Commercial activities
b. Exceptions
1) NOT mere recreational
2) OK for actions of gov. employees
3) OK for govt benefits
c. only fundamental rights protected
d. substantial justification exception
2. 14th amendment privileges of national citizenship
III. State regulation or taxation of commerce
A. Regulation of foreign commerce- NO
B. Regulation of interstate commerce
1. by congress
a. power of congress to supersede or preempt state regulation
b. power of congress to permit or prohibit state regulation
2. DORMANT state regulation in absence of congressional action
a. discriminatory regulations
1) Per se invalid if purpose for economic advantage/protection
2) OK to favor if govt entity (in business)
3) For health and safety OK if state shows no reasonable nondiscriminatory means. HARD TEST
b. nondiscriminatory laws, balancing test
1) Finally look at unreasonable burden
a) OK unless balancing test; marginal benefits v. materially obstruct
c. EXCEPTIONS
1) Congressional approval (usually fed. statute)
2) Market participant (as buyer or seller) Unless goes to far
3) Govt. subsidies
4) 21st amendment OK regulate …. Of liquor
a) Possession
b)
c) Transportation
3. ANALYSIS
a. Fed law? Authorize or preempt
b. Discriminates? Invalid unless health safety (no alternative) subsidies, market participant
c. Not discriminates? Unreasonably burdensome?
4. 21st amendment
a. State control over intoxicating liquor
1) Intra state regulation
2) Interstate regulation
3) Federal power
C. State taxation of interstate commerce
1. just like regulation but also
a. not ok discriminate
b. not ok unreasonable
c. congress preempt/authorize
2. congress tax invalid if
a. non-discriminatory
b. activity/person/thing taxed substantial (nexus to state)
1) sales tax- sale in state
2) property taxes
a) sufficient contacts
b) ok if seller
3) doling business
a) present within state, store property agents
b) mere mail solicitation
4) Not unreasonable burdensome (flat tax not good)
D. ENFORCEMENT
1. to enforce constitutional violations MUST
a. be against govt (not
b. requires state action
1) clear govt action, i.e. passing a law
2) officials
a) if act with authority
b) act under color of law (even w/o authority)
3) private individuals
a) public function
(i) when private company performs govt function
(ii) interpreted narrowly and
(iii) function must be traditionally and exclusively the govts.
b) Significant state involvement with private conduct
(i) Just because significant contacts NO
(ii) But if so interconnected as to make state responsible for specific action. i.e. Leased building, ok’d that exact policy by coffee shop.
c. Govt non-action doesn’t count unless
1) There was a govt duty or
2) P in govt custody
IV. Individual liberties
A. Retroactive legislation
1. contract clause NO retroactive if substantially impair UNLESS
a. overriding public need and
b. reasonably and narrowly tailored means
c. example; depression (longer time to pay)
d. reason; to stop elections promising
2. ex post facto laws
a. can’t do ex post facto criminal laws.
1) Makes something illegal which already happened
2) Increases punishment after crime committed
3) Reduces evidence needed for conviction after crime committed
4) Examples; three strikes your out laws- ct said not trigger 3rd felony)
a) Megan laws; sex offender registration. (cts said not criminal, law is civil, not punishment…
b. OK but must do it prospectively not back in time
3. Ban on bills of attainer
a. Not ok legislation to impose punishment on punishments on specific groups or
B. Procedural due process -f avorite of examiners
1. how govt. acts when adjudicative acts –individual (not legislative)
2. NEED
a. notice
b. fair procedures
c. opportunity to be heard
3. TEST
a. Deprivation of life, liberty, or property interest
1) deprivation – must be intentional (not negligent)
2)
a) Physical liberty
(i) Jail, (good time credits taken)
(ii) Revokes probation
(iii) Mental hospital
(iv) If already there, only if Atypical for prison environment.
b) Loss of legal rights
(i) Relationship with children
c) NOTE; not mere injury to reputation
3) Property
a) Conventional real and personal property, tangible and intangible
b) Government benefits
(i) Welfare payments
(ii) Social security etc.
(iii) Right to attend school
(iv) Govt licenses
(v) Govt. employment
4) concept of entitlement
a) entitlement is property and not mere expectancy of it.
b) Property if contract or statutory promise (not if at will or expired contract)
c) EXAM TIP; signaling words, probationary employee, provisional or temp. employee, non civil service, non tenured employee. Etc.
b. What process is due?
1) Usually requires
a)
(i) Hearing usually
(ii) Before deprivation
b) Notice
(i) Before deprivation
(ii) After if govt significant need (emergency)
2) Balancing TEST (matthews v. elridge)
a) Nature of the interest at stake
b) Risk of erroneous decision (for these procedures
c) Govt interest
4. Access to courts for indigents
a. Waiver of filing fees for indigents required if charging would result in
1) Denial of fundamental right (constitutional right)
b. not required for bankruptcy
c. Yes required for constitutionally protected liberty
1) Transcript to challenge taking child away
C. Takings clause/eminent domain
1. neither fed govt (5th) or states (14th) may take private property without just compensation
a. private property
1) not govt
b. Taking ok?
1) must be for public use
a) legitimate governmental goal and
b) just compensation paid (fair market value at time of taking)
c. Taking?
1) Physical invasion or occupation (99%)
a) No matter how big/long even if temp
2) Regulatory takings;
a) OK if
(i) Advances some legitimate state interest and leaves economically viable use for property.
(ii) Factors;
(iii) Unless govt is manifestly unfair, OK
3) Conditional permits
a) Require conditions before building
b) OK if Rough proportionality between proposed development and condition of permit.
V. 14th amendment
A. Privileges and immunities of national citizenship
1. only right to travel/move within
B. equal protection and due process
1. fed 5th, state 14th
C. standards of review:
1. strict scrutiny; govt must prove law is narrowly tailored to achieve a compelling govt interest.
2. intermediate scrutiny; govt must show law is necessary to achieve an important govt interest.
3. rational basis test; minimum scrutiny
a. private party must prove law lacks rational basis and is unrelated to legitimate
D. Equal protection
1. What is it? This relates to how govt. classifies us and/or how the govt treats people differently
2. What counts as Classification?
a. Must be intentional and purposeful classification
1) Express- on face
2) As applied (administrative)
b. Not enough for mere effect to be discriminatory, must be purposeful
3. Types of classifications
a. Racial/ethnic discriminations
1) STRICT SCRUTINY
2) If against minorities, pretty much violates
3) If for minorities then OK if
a) Court ordered because of past discrimination (de jure)
b) Voluntary affirmative action if history of specific discrimination and narrowly tailored to correct.
4) Higher education
a) Ok if objective “achieving a diverse st. body” but still must be narrowly tailored
b)
b. Aliens (non-citizens)
1) Federal regulation – Rational basis
2) State regulation- strict
a) So rarely valid
b) Not ok to use as bar to
(i) BAR admission
(ii) Private school teacher
(iii) Benefits
(iv) Unemployment compensation
(v) State tuition
3) EXCEPTION
a) State may require
(i) OK public school teachers
(ii) OK law enforcement personael
(iii) OK governmental process
(iv) OK voting
(v) NOT OK notary public
c. Illegitimate children
1) Intermediate scrutiny
a) But for intestate secession state has substantial interest
b) So OK to say only inherit if paternity established during dad’s life. But need reasonable time period.
2) Immigrants- more latitude to regulated based on legitimacy of children.
d. Gender
1) Intermediate scrutiny
a) For both men and women
2) Usually struck down unless
a) Bona fide affirmative action
(i) OK if to account for specific past discrimination
b) Real Differences
(i) Draft (because only men in combat)
(ii) Statutory rape (because unwanted pregnancies)
e. All other
1) Rational basis
a) Pretty much ok whatever govt does.
b) NOT ok if based solely on irrational reasons (fear, hatred, ill will)
VI. Fundamental rights
A. Not express, rather Constitutionally implied by SC
B. IF not here on list then rational basis
C. Substantial due process
D. Equal protection
E. Fundamental rights (ONLY THESE)
1. privacy
a. marriage and divorce
1) can’t substantially burden or unreasonably condition
b. contraception
1) buying and using
c. abortion
1) before viability of fetus
a) NO undue burden
(i) Means no substantial obstacle
(ii) NOT OK to publicize names, require consent of father etc.
(iii) OK to require
(1) 24 hour waiting
(2) Viability test
(3) Informed consent
(4) Minor get consent of parents if judicial override
(iv) OK to prohibit
(1) Partial birth procedure (narrow exception)
(2) Govt finance
2) After viability
a) Govt can regulate substantially or even ban
b) IF EXCEPTION for health of mother (to save life or if will substantially affect health).
d. Obscenity
1) Possession in house –strict scrutiny
e. Family relationships
1) Parents to raise children as they see fit
2) Parents to maintain relationship with children
3) To live together as family
a) Family= by blood, by marriage, traditional view
4) These are strict scrutiny
f. Right to refuse unwanted medical care
1) Must be adult
2) OK even if death hastened
3) Ok to regulate if govt has good reason
a) Balance govt need with ind. Right
b) OK to require vaccinations
c) OK to require evidence of
g. Private consentual sexual activity between adults
1) i.e. sodomy statute struck down
2) SC not labeled fundamental right, rather
a) “substantial protection in private lives re: sex”
3) BUT no right for
a) Adultery, incest, minors, prostitution, assisted suicide.
h. Right to vote/political process
1) VOTING
a) Can’t put unreasonable burdens on
(i) OK If require
(1) Age, citizen, residency, literacy, Ok bar felons.
(ii) NOT OK when require
(1) High fees/lots of money
(2) Property ownership
(3) Military disqualified
(4) Long residency requirements
2) Weight of vote
a) One person/one vote
b) Strict fed, not so strictly applied to states
c) Gerrymandering
(i) Racial
(1) Against minorities NOT OK
(2) For minorities, STRICT
(i) One factor OK (shape looks ok)
(ii) Predominate factor NOT OK( looks rigged)
(ii) Political
(1) NOT OK if intentional and locks other party out forever
3) Access to ballot
a) Reasonable access requirements ok
i. Right to interstate travel
1) Durational residency requirements
a) Not ok for important benefits (need to live)- welfare etc.
b) Ok for up to one year on supplementary benefits
2) Can’t give more benefits if state resident longer
3) No right to international travel- rational basis
VII. First amendment
A. Language problems
1. vagueness- need enough to be fair notice and not make self censorship
2. overbreadth- can’t be so sweeping that affect more speech then necessary
3. prior restraints
a. Almost never ok
b. Unless direct, immediate, and irreparable harm
B. Speech
1. speech
a. includes freedom not to speak
b. can’t be forced to say something
1) include in parade
c. symbolic (if govt regulating conduct because of message)
1) draft card burning regulation ok, because applies regardless of why
2. Kinds of regulations
a. CONTENT based regulations
1) Not unless
a) Speech is unprotected or
b) Govt has compelling need
c) And not viewpoint discrimination
2) Rarely upheld
b. TIME, PLACE and MANNER regulations
1) Only regulating where, how or when speech happens
2) OK if pass three factor test
a) Content neutral; clear neutral standards, no executive discretion
b) Alternatives for speech-
c) Narrowly serves significant purpose of govt (here usually focused on narrowly tailored)
3. Unprotected speech
a. Incitement
1) Words that incite immediate violence or lawless conduct
2) Test
a) Likely to incite
b) Directed at inciting
3) Mere advocacy not
4) Ok to counsel overthrow of govt by force (focus immediate)
5) Heckler’s veto, when can audience objection to speaker (and thus reaction with violence) be counted: when immediate danger of uncontrolled violence.
b. Fighting words/true threats
1) Words by very utterance inflict injury or incite immediate breach of peace “your mother…”
2) Not merely offensive
3) Must be directed at
4) True threats
a) Speaker means to say and means to carry out and aimed at
c. Obscenity
1) Average person contemporary standards prurient interest (LUST)
2) Patently offensive and defined by statute (offensive and statute)
3) Lacks serious literary, artistic, political, scientific, value (SOCIAL VALUE)
4) Mere nudity, dirty words, sexually explicit not enough
a) Then ok to regulate if
(i) Regarding minors and narrowly tailored
(ii) Zoning
d. Commercial speech and advertising
1) Govt may regulate/prohibit if false, misleading, deceitful or advising unlawful transaction
2) Govt may regulate others IF
a) Intermediate standard of review
3) Here usually total ban not ok
e. Libel and slander (see torts)
C. Freedom of press
1. no special rights by common law
D. Special contexts
1. non-public forum
a. not traditionally open to public or opened by intent of govt.
b. ok if limit to subject site is dedicated to
c. ok if viewpt neutral
d. time/place manner regulations ok if reasonable
e. examples
1) post office
2) govt work place
3) school
4) military base
5) jail
2. govt/public employee’s
a. can’t be hired, fired or disciplined because of political views
1) unless very high up and relevant
2) unless active member of subversive org
b. can’t fire, disciplined if content is public concern unless
1) disrupts operation of office
2) undermines authority
3) destroys close working relationship
c. ok to limit partisan political activities
d. ok to control employment related speech
3. students in school
a. content control ok if pedagogical concern and not violate 1st amen.
b. School sponsored newspaper ok to edit
c. Can set standard of decency in discourse (obscene)
d. Ok if school event
e. If not related to curriculum (lunchtime, t-shirts) then ok if
1) Materially and substantially disrupts (or will) not just uncomfortable, must have facts to show
f. Not ok if viewpoint discrimination.
VIII. RELIGION
A. Freedom of religion
1. Religious belief
a. absolutely protected
b. govt can only (in proper contexts) inquire into sincerity of beliefs not whether they are true
2. religious conduct
a. laws aimed at
1) ok if pass strict scrutiny and not singled out because of religion
b. generally applicable laws
1) ok
c. ct resolution of church
1) not if religious doctrine q
2) ok if can use civil law
B. Establishment clause
1. neutrality/lemon test (now look at neutral and endorsing)
a. secular purpose
b. primary effect advances/inhibits religion
c. avoid excessive entanglement
2. specific situations
a. govt traditions like in god we trust (coins) and prayer in congress
1) OK if historically accepted and benign
b. Ok to provide generally available govt benefits
c. NOT OK if benefit is not generally available to public
3. Govt aid to religious schools
a. Elementary and secondary
1) Must pass lemon test
2) OK remedial services, busing, secular textbooks etc.
b. School vouchers
1) Ok if through parent’s choice
4. govt sponsored prayer/religious displays
a. prayer in schools- basically no
b. displays
1) if reasonable person would think govt endorsing religious message then NO
2) the more dilute the more ok (snowman, reindeer etc.)
