Constitutional Law

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Constitutional Law
2010-05-27 16:12:49
Con Law

Procedural and Substantive Aspects of Con Law
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  1. Where does judicial power come from in the Constitution?
    Article III Section 1-it vests judicial power in one Supreme Court and in inferior courts established by Congress
  2. The Supreme Court has jurisdiction over what 7 cases or controversies?
    1. Arising under the Constitution, laws, and treaties of the US

    2. Affecting foreign countries' representatives

    3. Admiralty and maritime jurisdiction

    4. US is a party

    5. B/t 2 or more states or a state and citizen of another state

    6. B/t citizens of different states or citizens of same state claiming land in different states

    7. B/t a state or its citizen and foreign states and citizens
  3. Marbury v. Madison established that the Supreme Court has the power to ___________________.
    Review acts of other branches of federal government.
  4. Case law estblishes that federal review may be imparted on ______________ and that federal law takes precedence over state law.
    Reviewing state acts
  5. How does the 11th Amendment limit federal jurisdiction?
    Under the 11th Amendment, you cannot sue a state in federal court. However, it does not bar suit against local government or suits against states.
  6. Exceptions to the 11th Amendment that allow federal jurisdiction:
    1. Consent

    2. Ex parte Young (state officials can be sued in federal court to prevent enforcement of an unconst' state law)

    3. Injunctions

    4. Damages to be paid by state officer

    5. Congressional authorization enforcing equal protection rights
  7. The Supreme Court has barred federal law actions brought against state government in state court as a violation of what?
    Sovereign immunity
  8. What actions are not barred by the 11th Amendment?
    1. Actions against local governments

    2. Actions where the plaintiff is the US or another state

    3. Bankruptcy proceedings that impact state finances
  9. Art. III Sec.2 give the Court original jurisdiction over what type of cases?
    Cases affecting ambassadors, public ministers and consuls, and those in which the State is a party. This jurisdiction cannot be expanded but it can be granted concurrently with lower federal courts.
  10. Art. III Sec.2 also grants the Court power under the Supremacy Clause to review what?
    State court decisions and statutes to ensure conformity with the Constitution
  11. What are the two means to establish appellate jurisdiction in the Court?
    1. Certiorari

    2. Direct Appeal
  12. Under Certiorari, when will the Court have jurisdiction?
    Only if at least 4 justices vote to accept the case
  13. When MUST the Court hear cases by direct appeal?
    When the case comes from a decision on injunctive relief issued by a special 3 judge district court panel.
  14. What must occur for a final state court judgment that rests on adequate and independent ground to not be reviewed by the Court?
    • 1. The state law grounds must fully resolve the matter and
    • 2. Must not incorporate a federal standard by reference
  15. What issues determine whether a case may be heard by a federal court?
    1. Standing

    2. Timing

    3. Other issues of justiciability
  16. Define standing.
    When a party has a concrete interest in the outcome of a case
  17. How does a plaintiff establish standing?
    1. Show a direct injury caused by defendant's violation of a constitutional or federal right.

    2. The injury must be concrete and particularized

    3. A threat must be actual and imminent

    4. The injury must be traceable to the defendant's conduct

    5. Relief requested will prevent or redress the injury
  18. What does it mean for an injury to be concrete and particularized?
    It must be limited to a particular person or group of people. However, the Court has also ruled that where a plaintiff has been directly injured it doens't matter how many people were also injured.
  19. How can a plaintiff show causation to prove standing?
    He must show that the injury was traceable to the challenged action-that the defendant caused the injury.
  20. Does a taxpayer have standing to file a federal lawsuit because he believes the government has allocated funds improperly?
    No. A taxpayer does have standing, though, when challenging government expenditures as violating the Establishment Clause.
  21. Does a taxpayer have standing to file suit against federal government or state government for any injury to the taxpayer?
    No. Precedent does suggest that a taxpayer has standing to sue a municipal government in federal court, though.
  22. Under what exception does a taxpayer have standing to file suit challenging federal spending?
    When a specific congressional appropriation (under the taxing and spending power) is a violation of the Establishment Clause.
  23. Generally, a litigant cannot bring a lawsuit on behalf of a 3rd party that is not in court unless:
    1) The third party would experience difficulty or is unable to assert their own rights

    2) There is a special relationship b/t the plaintiff and the 3rd party

    3) An organization can bring an action on behalf of its members so long as its members would have standing to sue on their own, the interest at stake is germane to the organization's purpose, and neither the claim asserted nor the relief requested would require participation by the 3rd party.
  24. Under the timeliness requirement of judicial review, what will happen to a suit brought too late or too soon?
    It will not be heard.
  25. What must occur in order for a case to become "ripe" for judicial review?
    The plaintiff must have experienced a real injury or imminent threat thereof.
  26. When does a case become moot?
    When further legal proceedings would have no effect because there is no longer a controversy. A live controversy must exist at each stage of review, not merely when the complaint is filed.
  27. When might an exception apply to possibly moot cases?
    When the controversy is a type that often recurs but that doesn't last long enough to make its way through the judicial system. Ex.: Roe v. Wade-the plaintiff was no longer pregnant when the case reached the Court but the issue was likely to be repeated again.
  28. How does voluntary cessation effect moot cases?
    When a defendant voluntarily ceases its illegal or wrongful action after litigation has begun, the court will not dismiss a case as moot.
  29. How do class actions effect mootness?
    If the names plaintiff's claim in a certified class action is resolved and becomes moot, that does not make the entire class action moot.
  30. Other reasons that federal courts may not decide a case:
    1. Advisory opinions-can't issue opinions based on hypo disputes

    2. Declaratory judgments-courts can issue those that determine the legal effect of proposed conduct w/o awarding damages ir injunctive relief though

    3. Political questions-no involvement in political questions to be resolved by one or both of the two branches of government
  31. When a strong state interest is at stake, a federal court may ________ from deciding a claim.
  32. What is the Pullman doctrine?
    A court may refrain from ruling on a federal constitutional claim tht depends on resolving an unsettled issue of state law best left to the state courts.
  33. What is Younger abstention?
    A court will generally not enjoin a pending state criminal case, or a state enforcement proceeding in which an especially strong state interest is involved.
  34. The Supreme Court hears state court matters only if the judgment was decided on ____________________________.
    Federal grounds
  35. The Supreme Court will refuse to exercise jurisdiction over a case if it finds ____________________________ nonfederal state grounds to support the decision.
    Adequate and independent
  36. List the Powers of Congress.
    • 1. Commerce
    • 2. Taxation and spending
    • 3. War and defense powers
    • 4. Investigatory power
    • 5. Property power
    • 6. Postal power
    • 7. Power over citizenship
    • 8. Power to enforce the 13th, 14th, and 15th Amendments
    • 9. Qualification of members
  37. Which Amendment makes clear that the federal government may exercise only those powers granted to it?
    10th Amendment
  38. Which Article vests all legislative powers of the federal government in Congress?
    Art. 1, Sec. 1
  39. Congressional power to legislate for the health, safety, and welfare of citizens
    Congress has no general police power to legislate for this. The validity of a federal statute on the bar exam may not be justified based on federal police powers.
  40. What does McCulloch v. Maryland state about congressional power?
    Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. (Necessary and Proper Clause).
  41. Is the Necessary and Proper Clause an independent source of congressional power?
    No. Standing alone, it would not be a correct bar exam choice unless it carried into effect other enumerated powers.
  42. What does the Commerce Clause do?
    The Commerce Clause allows Congress to regulate Commerce with foreign nations and among the several states and Indian tribes.
  43. What are Congess' powers under Interstate Commerce?
    1. The power to regulate-channels, instrumentalities, and any activity that substantially affects interstate commerce

    *To be w/in Congress' power, a federal law must regulate the channels of intersate commerce; regulate the instrumentalities of interstate commerce; or regulate activities tht have a substantial effect on interstate commerce (The Substantial Economic Effect)
  44. How is Congress limited in regulating intrastate activity under the Commerce Clause?
    1. as long as a court can imagine a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even as to very small pieces of that total

    2. Congress must adduce facts establishing an actual substantial economic effect on interstate commerce when dealing w/non-economic activity. Without such a showing, the statute is unconstitutional.
  45. When will a tax by Congress be upheld?
    When it has a reasonable relationship to revenue production or if Congress has the power to regulate the activity being taxed.
  46. What does it mean that Congress has plenary power to raise revenue through taxes?
    It means that Congress doesn't need to prove that the tax is necessary to a compelling government interest
  47. Since federal taxes must be uniform throughout the US, what does this mean?
    The term is interpreted geographically, and the product or activity at issue must be identically taxed in every state in which it is found. Differences in state law do not destroy this uniformity.
  48. What is a direct tax?
    One that is imposed directly on property or persons, like property tax
  49. How does Congress treat export taxes?
    Goods exported to foreign countries may not be taxed
  50. Describe Congress' spending power.
    Congress has the power to spend for the general welare, not just to pursue its other enumerated powers. Congress is able to indirectly regulate some areas because they can condition federal funding.
  51. What are Congress' war and defense powers?
    To declare war, raise and support armies, provide and maintain a navy, make rules for governing land and naval forces, and provide for the organizing of militia.
  52. Congress doesn't have the express power to investigate, but the ____________________ allows it broad authority to conduct investigations incident to its power to legislate.
    Necessary and Proper Clause
  53. What is the scope of Congress' investigatory powers?
    The matter must be within a legitimate legislative sphere and be authorized by the house of Congress concerned by statute or resolution
  54. What is the scope of Congress' property power?
    Congress can dispose of and make all needful rules respecting land owned by the US. There is no limit on Congress' power to dispose, but the 5th Amendment states that Congress may only take private property for public use w/just compensation and to effectuate an enumerated power.
  55. Under Art. 1, Sec.8, Clause 4 Congress may establish uniform rules of naturalization.
    1. Congress has plenary power over aliens

    2. Congress cannot take away the citizenship of a citizen w/o his consent, as expressed by words or conduct, unless citizenship was obtained fraudulently or in bad faith
  56. Congress has power over maritime matters, the coining of money, fixing of weights and measures, and patents and copyrights.
  57. Congress may pass appropriate legislation to enforce civil rights guaranteed by what amendments?
    13, 14, 15
  58. What does the 13th Amendment deal with?
    Ban on slavery. Congress has power to adopt legislation rationally related to eliminating racial discrimination. It can regulate both private and government action.
  59. What does the 14th Amendment deal with?
    Equal protection and due process. Congress can pass legislation to enforce these rights but not expand them to create new ones. There must be a congruence and proportionality b/t the injury to be prevented or remedy and the means adopted to that end. Congress may override state regs that infringe on these rights but cannot regulate wholly private conduct.
  60. What does the 15th Amendment deal with?
    Voting. It prohibits both state and federal government from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude.
  61. Where can you find the qualifications for members of Congress?
    Art. I

    These qualifications cannot be altered by Congress or the states
  62. Under Art. 2, Sec. 1, what powers are granted to the President?
    • 1. Domestic powers
    • a. Pardon power for federal offenses
    • b. Veto power
    • c. Appointment and removal of officials
    • d. Authority as Chief Executive
  63. When can the President not grant reprieves and pardons?
    For state crimes or in cases of impeachment
  64. Explain the Presidential veto power.
    • Upon presentment, the President has 10 days to act on proposed legislation. If he vetos it, Congress may override the veto with a 2/3 vote in each house. If he does nothing, then the bill becomes law w/o his signature as long as Congress is still in session (pocket veto).
    • *Line item vetos not allowed
  65. Describe the President's appointment powers.
    He may appoint officers of US w/the advice and consent of the Senate.

    Congress may delegate appointment of inferior officials w/o Senate approval

    Congress cannot appoint members of a body w/administrative or enforcement powers b/c that's the President's job
  66. Describe the Presidential power of removal.
    The President may remove executive officers w/o cause but w/Senate approval.

    Art.3 protects federal judges and they may be removed only by impeachment.

    *the Constitution doesn't explicitly give the President the power of removal
  67. Explain the President's authority as Chief Executive.
    -Not clearly deliniated but at its highest when authorized by Congress

    -Diminished when Congress hasn't spoken

    -Act is invalid if it interferes w/operation of another branch of government

    -Where Congress is opposed, it is at its lowest ebb and is likely invalid
  68. Describe the President's power in foreign affairs.
    1. As Commander in Chief, he can take military action but cannot declare war. Congress can limit his actions through military funding.

    2. He can negotiate treaties but needs 2/3 Senate approval. Should a treaty conflict w/an act of Congress, the most recently adopted controls.

    3. Enter into executive agreements with foreign nations and doesn't require 2/3 Senate approval.
  69. Conflicting federal statutes and treaties take precedence over executive agreements, but executive agreements take precedence over conflicting state laws.
    • 1. Federal statutes and treaties
    • 2. Executive agreements
    • 3. State law
  70. What are the congressional limits on the executive?
    1. Impeachment- House of Reps may impeach by majority vote. Senate tries and may convict impeached official with 2/3 vote.

    2. Congress can explicity mandate an expenditure of funds, which the President cannot impound (if Congress fails to mandate that funds are not to be spent, impoundment is not a seperation of powers violation).

    3. Congress cannot attempt a legislative veto of an executive action
  71. When can legislative powers be delegated?
    It can be delegated so long as Congress specifies intelligible standards for the delegate to follow, and the power delegated must not be one uniquely assigned to Congress. For exam, remember that there is no limit on Congress' ability to delegate to executive and judiciary branches.
  72. Describe the scope of judicial, legislative, and executive immunities.
    1. Judicial- immune from civil liability for judicial acts

    2. Legislative- Speech and Debate Clause protects statements and conduct made in the regular course of legislative process

    3. Executive- Under executive privilege, presidential documents and communications are protected but must be made available in criminal cases. Executive immunity protects president against civil actions regarding acts as part of official presidential responsibility.
  73. What are some exclusively federal powers exempted from States?
    • 1. Power to coin money
    • 2. Power to enter into treaties
    • 3. Power to declare war
    • 4. Power over citizenship
  74. What are powers exclusive to states?
    10th Amendment says that all powers not specifically assigned to federal government are reserved for the states. This sounds broad but is actually rarely exclusive.
  75. What happens when both state and federal law legislate in the same area of law?
    The Supremacy Clause says that federal law will supersede conflicting state law.

    State can't shield state officers from federal liability and can't exclude federal claims from being heard in state court.
  76. In what areas does federal government receive immunity from the States?
    1. States have no power to regulate the federal government w/o congressional approval or consistence w/federal policy

    2. The federal government and its instrumentalities are immune from taxation by the states. States can impose generally applicable taxes so long as they are reasonable.
  77. What immunity do states have against the federal government?
    1. Congress can't force states to implement federal regs but can encourage cooperation through taxation and spending powers. Congress can also prevent states from performing certain acts.

    2. States are only immune from federal taxation if the tax would discourage essential governmental functions.
  78. What is the dormant commerce clause?
    It limits the power of states to legislate in ways that impact interstate commerce. This power is reserved for Congress. If Congress hasn't enacted legislation in a particular area, the state can regulate so long as it doesn't discriminate against out-of-state commerce, doesn't unduly burden interstate commerce, and doesn't regulate extraterritorial activity.
  79. Dormant Commerce Clause-what is the test for discrimination of a state law?
    • A state law discriminates against out-of-state commerce if it protects local economic interests at the expend of out-of-state competitors. If a law is prima facie discriminatory, then the state must establish:
    • 1) an important local interest is being served, and
    • 2) no other non-discriminatory means are available to achieve that purpose
  80. Dormant Commerce Clause- when can a state behave in a discriminatory fashion?
    When it acts as a market participant and not a market regulator.
  81. Dormant Commerce Clause- what is the local government function exception?
    Local laws may favor local government entities but not local private entities.
  82. Dormant Commerce Clause- exception for discriminatory regulation permitted by Congress
    Congress may explicitly permit states to act in ways that would otherwise violate the dormant commerce clause. It must be unmistakably clear that Congress intended to permit the regulation; Congress must expressly allow state legislation.
  83. Dormant Commerce Clause- necessary to important state interest
    A discriminatory state law may be valid if it furthers an important, non-economic state interest like health and safety, and there are no reasonable alternative available.
  84. A state regulation can still be struck down when it's not discriminatory but imposes an undue burden on interstate commerce. Describe the balancing test for this.
    Courts will balance the objective and purpose of the state law against the burden on interstate commerce. If the benfits of the law are grossly outweighed by the burdens the reg may be struck down.
  85. Extraterritoriality
    States cannot regulate conduct beyond their borders
  86. When can a state tax interstate commerc?
    Only if Congress has not alrady acted in the particular area and if the tax does not discriminate against or unduly burden interstate commerce.
  87. The Court applies a 4 part test to determine whether a state tax on interstate commerce comports with the Commerce Clause, called the Complete Auto Body Test. What is this test?
    1. Substantial nexus b/t the activity being taxed and the taxing state (significant contacts w/or w/in the state)

    2. Tax is fairly apportioned according to a rational formula-burden on taxpaying business to prove unfair apportionment

    3. Tax can't provide direct commercial advantage to local businesses over interstate competitors unless authorized by Congress

    4. tax must be fairly related to the services provided by the taxing state.
  88. When can a discriminatory tax violate more than just the Commerce Clause?
    1. A tax that discriminates against non-residents may violate the interstate Privileges and Immunities Clause

    2. Discriminatory taxes on out-of-state businesses, even if authorized by Congress, may still violate Equal Protection Clause if there is no rational basis to support it.
  89. Types of taxes
    1. Ad valorem property tax- based on value of real or personal property

    2. Sales tax- valid so long as the sale is consummated w/in the state (not if seller delivers goods to an out-of-state buyer)

    3. Use tax- tax on goods purchased out of state but used w/in state valid so long as the use tax rate is not higher than the sale tax rate on that item

    4. Doing business tax-taxes levied agaisnt companies for the privilege of doing business in a stare are valid so long as the activity taxed has a substantial nexus to the taxing state, the tax is fairly apportioned, the tax doesn't discriminate against interstate commerce, and the tax is fairly related to services provided by the state.
  90. When can a state not levy ad valorem taxes?
    When the goods are in the course of transit (from the time the goods are delivered to an interstate carrier or begin their interstate journey until they reach their destination).
  91. Under ad valorem property taxes, when can a state tax instrumentalities of commerce?
    1. The instrumentality has sufficient contacts w/the taxing state

    2. The tax is fairly apportioned to the amount of time the instrumentality is in the state
  92. Notes on Foreign Commerce and State Taxation
    The Import-Export Clause prohibits states from imposing any tax on imported or exported goods or commercial activity connected w/imported godos.

    Commerce Clause limits state taxation on other countries b/c it vests that power in Congress. As such, state taxation on foreign commerce must meet the same reqs as tax on interstate commerce (but if it creates substantial risk of international multiple taxation or prevents fed government from speaking with one voice regarding international trade then the tax is invalid).
  93. Express preemption of state law
    Federal law expressly preempts state law in cases where the Constitution makes the federal power exclusive or where Congress has enacted legislation that expliclity prohibits state regs in the same area. Savings clauses may explicitly preserve or allow state laws that regulate in the same area of federal law.
  94. Federal implied preemption of state law
    • Federal preemption is implied when:
    • 1) Congress intended for federal law to occupy the field (must be express and narrowly construed)

    2) State law direclty confilcts w/fed law

    3) State law indirectly conflicts w/fed law by creating an obstacle to accomplishing the law's purpose
  95. A state can set environmental standards that are stricter than federal laws unless:
    • 1) Congress prohibits it
    • 2) State law interferes w/achievement of federal objective; and
    • 3) Congress shows clear intent to preempt state law
  96. Relations Among States-Interstate Compacts
    An interstate compact is an agreement, similar to a treaty or a contract, between two or more U.S. states. These can be entred into only w/consent of Congress. The only agreements qualifying as compacts that need this consent are those that affect a power delegated to the fed government or alter the political balance w/in the fed system.
  97. What does the Full Faith and Credit Clause state?
    Full faith and credit shall be given in each state to the public acts, records, and judical proceedings of every other state.
  98. Treatment of judgments in the Full Faith and Credit Clause
    Full faith and credit requires that out-of-state judgments be given in-state effect, but: 1) the court that rendered the judgment must have had subject matter jurisdiction; 2) judgment must have been on the merits and not procedural; and 3) the judgment was final.
  99. State action and the role of the courts
    State action is necessary to triggering constitutional protections. A private person's actions must constitute state action for the protections to apply. State action is found when a private person carries on activities traditionally performed exclusively by the state (like running elections). Merely providing a product or service that government could offer is not sufficient.
  100. Significant State Involvement
    State action may exist if there are sufficient mutual contacts b/t the conduct of private and g'ment parties.

    Guidelines for significant state involvement: state must act affirmatively to facilitate, encourage, or authorize the activity OR if private and g'ment party actions are so intertwined that a mutual benefit results
  101. The Due Process Clause of the 5th Amendment, which applies against g'ment, provides:
    No person shall be deprived of life, liberty, or property w/o due process of law
  102. The Due Process Clause of the 14th Amendment, which applies against states, provides that:
    No state shall make or enforce any law which shall deprive any person of life, liberty, or property w/o due process of law
  103. Due Process Generally
    At the most basic level, the federal and state g'ments must follow certain procedures b/f depriving any person of life, liberty, or property. These safeguards are the cornerstone of procedural due process.
  104. What Amendment is responsible for making most provisions of the Bill of Rights appicable against the state?
    14th Amendment- the Due Process Clause under this amendment incorporates the 1, 4, 5, 6, and 8 amendments
  105. Due Process clauses and Substantive components
    Both Due Process Clauses contain a substantive component that guarantees certain fundamental rights. This substantive due process acts as a catch-all for rights not explicitly stated in the Constitution.
  106. Under Due Process, fundamental fairness includes an individual's right to:
    Be notified of charges or proceedings against him, the opportunity to be heard at those proceedings. If one's liberty or property interest is adversely affected by g'ment action, 2 questions are asked: 1) Is the threatened interest a protected one, and 2) If so, what process is due?
  107. What interestes are protected under the Due Process Clauses?
    -Liberty (significant restraint on physical freedom, exercise of fundamental rights, or freedom of choice or action)

    -Property (right to public education, g'ment issued licenses, welfare and disability benefits)

    -Notice and Hearing (private interest affected by g'ment action, risk of erroneous deprivation of that interest and probably value of additional or substitute safeguards, and the burden involved in providing additional process are all considered when determining how much process is due).
  108. Under Due Process, what is due to the person whose interest is being deprived?
    Notice of the g'ment's action and an opportunity to be heard
  109. Substantive Due Process and Standard of Review
    Standard of review is twofold: A government action that infringes upon a fundamental right is subject to “strict scrutiny.” If the interest infringed upon is not fundamental, there need be only a “rational basis” for the regulation.
  110. Strict Scrutiny Test-very hard to meet
    Law must be the least restrictive means to achieve a compelling g'ment interest. This means there can be no way to achieve the same interest in a less restrictive way. Strict Scrutiny dictates that the law should be neither over-inclusive nor under-inclusive
  111. Under Substantive Due Process, what is a compelling g'ment interest?
    Generally it is something that is necessary, such as national security or preserving public health and safety.
  112. Who bears the burden of proof in arguing that a law is necessary when substantive due process is involved?
    The g'ment bears the burden
  113. When is the strict scrutiny test involved?
    Only if a fundamental right is involved
  114. Rational Basis Test-used in all cases in which strict scrutiny does not apply
    A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny. Laws are presumed valid under this standard, so the burden of proof is on the challenger to overcome the presumption of rational basis by establishing the law is arbitrary or irrational.
  115. What is the third level of review in equal protection cases?
    Intermediate scrutiny
  116. Fundamental Rights
    • -Right to vote
    • -Right to travel
    • -Right to privacy
    • -All 1st Amendment rights

    Under strict scrutiny, a law interfering w/these rights will only be upheld if it is necessary to achieve a compelling g'ment interest
  117. Exam Note: If, on a question, a fundamental right is being infringed for all persons, the issue is likely one of substantive due process. If the right is being denied to only a particular class of persons, then equal protection is in play
  118. What privacy rights have been deemed fundamental and therefore examined under strict scrutiny?
    • 1. Marriage
    • 2. Contraception
    • 3. Intimate sexual behavior
    • 4. Abortion (varying degrees of state restriction in 3rd trimester)-undue burden test now used
    • 5. Parental rights
    • 6. Family relations
    • 7. Obscene material
    • 8. Right to refuse medical treatment
  119. Restrictions on abortion
    1. Pre-viability: undue burden exists when a state law places substantial obstacles in the way of a woman's right to seek abortion

    2. Post-viability: Now the state may regulate and prohibit abortion so long as there are exceptions for preserving the health of the mother.

    3. G'ment funding: No constitutional right for g'ment to provide indigent women w/$ for abortions. Also, a state may prohibit all use of public facilities and employees in performing abortions.
  120. Equal Protection Clause of the 14th Amendment provides that:
    • No state shall deny to any person w/in its jurisdiction the equal protection of the laws.
    • *This clause only applies to states and localities
  121. Is there a federal equal protection clause?
    No, but the Court has held that the 5th Amendment DPC includes the rights guranteed by the EPC, thereby making discrimination by fed gov subject to review under the same standards as discrimination by the states
  122. When reviewing government action under equal protection theories, the Court applies one of three levels of review, depending on the classification of persons or the type of rights concerned.
    1. Strict Scrutiny-least restrictive means to achieve a compelling g'ment interest; deals only w/fundamental rights or suspect classification

    2. Intermediate Scrutiny-substantially related to an important g'ment interest; deals w/classifications based on gender or status as non-marital child

    3. Rational Basis-rationally related to a legitimate state interest; deals w/rest of cases the others don't
  123. How can you prove discrimination?
    To trigger strict or intermediate scrutiny, there has to be discriminatory intent by the g'ment. Intent can be shown 1)facially, 2)as applied, or where there is a 3)discriminatory motive
  124. Laws that categorize based on race, national origin, or alienage are considered _____________, and therefore require close judicial examination
    • Suspect
    • These laws are subject to strict scrutiny and are invalid unless they are necessary to achieve a compelling g'ment interest
  125. Is remedying a past discrimination a compelling state interest?
    Yes, and states may bus students to schools or use other means to remedy it.
  126. How is discrimination by private employers dealt with?
    Since the EPC applies only the g'ment actions, federal statutes under the enabling clauses of the 13 and 14 Amendments and the Commerce Clause allow regulation of discrimination of private employers.
  127. Job related testing and the EPC
    The EPC prohibits intentional discrimination and practices that are not intended to discriminate but have a disproporitonately adverse effect on minorities.
  128. Federal alien classifications
    Likely valid unless arbitrary and unreasonable b/c Congress has plenary power over aliens under Art. 1.
  129. State classification of aliens
    Generally struck down when strict scrutiny is applied. Exception applies with state laws that restrict an aliens' participation in g'ment functions. These laws only have to be rationally related to a legit state interest
  130. Quasi-Suspect Classifications:
    • 1. Gender-intermediate scrutiny & discriminatory intent
    • 2. Legitimacy-intermediate scrutiny
    • 3. Age-rational basis
    • 4. Poverty-rational basis
  131. Article IV, Sec. 2, known as the Comity Clause, provides:
    • Citizens shall be entitled to all privileges and immunities of citizens in the several states
    • -Prohibits state discrimination against nonresidents
    • -Protected against discrimination w/respect to fundamental
    • rights or essential activities
    • -Discrimination ok if state can show a substantial reason for
    • the difference in treatment. Substantial reason exists if the
    • nonresident causes or is part of a problem that state is
    • tempting to solve and there is no less restrictive means to
    • solve the problem
  132. 14th Amendment-National Citizenship
    Citizens protected from infringement by states upon the privileges and immunities of national citizenship. The Bill of Rights, however, are not privileges and immunities of national citizenship under 14th Amend so those rights are protected only by the DPC and EPC.
  133. Eminent Domain
    Power of g'ment to take private property, limited by 5th Amend. 14th Amend makes the takings clause applicable to states. Must be a rational basis to conclude that the take would further a legit public interest. Regulation of property does not require compensation and is measured by degree of g'ment interference.
  134. Eminent Domain-Takings are usually found in the following situations:
    1. Where there is an actual appropriation or destruction of property, or the g'ment permanently physically invades the property

    2. Where there is a permanent, total loss of economic value in the land
  135. What is the balancing test used to determine whether a regulation constitutes a taking?
    • 3 Factors Considered:
    • 1) economic impact of the regulation on the property owner
    • 2) extent regulation interferes w/the owner's reasonable, investment-backed expectations regarding use of property
    • 3) character of regulation and whether it violates owner's essential attributes of property ownership

    *Exam Note: if a regulation is not per se taking, it will likely pass the balancing test
  136. How is just compensation measured in a taking?
    Fair market value at the time of taking
  137. Prohibitted Legislation
    Bill of Attainder-legislative act declaring a person or group guilty of a crime w/o trial

    Ex Post Facto Laws-laws that retroactively change criminal or penal law in a way that negatively impacts one who engaged in the conduct b/f the new law

    Obligation of Contracts- no laws passed that impair the obligation of contracts. Applies only to state legislation that retroactively impairs contractual rights
  138. A statute will be struck down as ex post facto if:
    1. It criminalizes an act that was not a crime previously

    2. It imposes a more severe penalty on past conduct

    3. It decreases the prosecution's burden of proof for a conviction to a level below that required when the offense was committed
  139. Obligation Contracts
    State legislation that substantially impairs a contract b/t private parties is invalid unless interference was reasonable and necessary to serve an important g'ment interest. Public contracts have the same test applied but are somewhat stricter

  140. Freedom of Religion-Establishment
    When g'ment program shows preference to religion, strict scrutiny applies.

    • To see if program is valid under the Establishment Clause, use 3 part Lemon test:
    • 1. g'ment action has a secular purpose
    • 2. the primary effect neither advances nor
    • inhibits religion, and
    • 3. it doesn't result in excessive g'ment
    • entanglement w/religion
  141. Freedom of religion and financial aid
    Programs that provide aid to religiously affiliated institutions are tested under the Lemon test (ex. indirect aid to schoolkids, aid to colleges and hospitals for nonreligious purposes, tax exemptions)
  142. Freedom of Religion and School Activities
    Religious activities conducted in school usually violate the Establishment Clause. Ex: prayer and bible reading, designated periods of silence or voluntary prayer, non-denominational prayer, posting the 10 commandments, prohibiting the teaching of Darwinism
  143. Freedom of Religion and Religious Displays
    10 Commandments on public property is impermissible if the display has predominantly religious purpose. Likely ok if it communicates a secular moral message or has historical meaning.

    Holiday displays generally upheld unless a reasonable observer would think the display endorses religion
  144. Freedom of Religion-Free Exercise
    Includes freedom to believe and freedom to act. Religious belief can't be restricted by law. G'ment can't deny benefits or impose burdens based on religious belief. Religious acts are not absolutely protected though. Only laws intentionally targeting religious conduct are subject to strict scrutiny. Neutral laws are reviewed under rational basis.
  145. Freedom of Expression and Association-Regulation of Content
    This right is not absolute. Regulations ok so long as the content of protected speech is not restricted. G'ment may only regulate content of speech if the regulation is needed to achieve a compelling interest and is narrowly tailored to meet that interest (strict scrutiny).
  146. Exam Note: All speech is deemed to be constitutionally protected speech unless it fits into one of the delineated categories of unprotected speech (defamation, porn, clear and present danger, fighting words, false advertisement)
  147. Freedom of Expression-Expressive Conduct
    • Expressive conduct is subject to lesser degree of protection. Regs will be upheld if:
    • 1) reg is w/in g'ment's power to enact
    • 2) reg furthers an important g'ment interest
    • 3) g'ment interest is unrelated to the suppression of ideas
    • 4) burden on speech is no greater than necessary
  148. How are g'ment regulations on limiting speech limited?
    • 1. Statutes can't be overbroad
    • 2. Void for vagueness
    • 3. No prior restraints unless particular harm, procedural safeguard
    • Burden on g'ment to prove material to be censored is not protected speech
    • 4. No unfettered discretion over speech issues