Bar Con Law Set 2

Cannot sue state for $ damages in either state or federal court unless exception

• 1. State explicitly consents
• 2. Congress expressly says so to protect 14th Amend Rights
• 3. Fed govt may sue state govt
• 4. BK proceedings

Article III, Section 2

- Over controversies between states

Article III, Section 2

• - Writ of Certiorari (court has full discretion)
• - Meet final judgment rule

• SCOTUS generally only hears cases after final judgment by:
• 1. Highest state court
• 2. U.S. Court of Appeals
• 3. Three-judge federal district court

SCOTUS can review a state court judgment only if it turned on federal grounds . The court has no JX if the judgment below rested on an adequate and independent state ground.

State ground must control the decision no matter how a fed issue is decided - Fed rights claimant wins anyway under state law.

State law does not follow or depend  on an interp of fed law. - No AISG is state law adopts or follows fed law.

• State officers can be sued for
• - injunctions
• - money damages paid from their own pockets

BUT CANNOT sue if state treasury will be paying retroactive damages

• 1. Standing
• 2. Ripeness
• 3. Mootness
• 4. Political Question Doctrine

Is the P a proper party for the case. 

• Elements
• 1. Injury 
• 2. Causation
• 3. Redressability 

• - No 3rd party standing unless exceptions
• - No generalized grievances

• Must be personally suffered by P
• - Economic injury is golden for standing
• - If seeking injunctive/declaratory relief, P must show likelihood of future personal harm

• 1. Close relationship btwn P and injured 3d party
• (E.g. Doctor may raise claim on behalf of patients)

2. 3d party unlikely to be able to assert his own rights

3. Organizations may sue on behalf of their members

Organizations may sue on behalf of their members if:

1. Members have standing individually

2. Interests are germane to org’s purpose

3. Neither claim nor relief requires participation of individual members

Taxpayers may challenge expenditures pursuant to statutes that violate the Establishment Clause

Although no taxpayer standing to challenge gov’t giving surplus property or general executive revenue to religious organizations

Rule: You must show actual harm or an immediate threat of harm

• Test:
• 1. Hardship suffered by P w/o enforcement review
• 2. Fitness of the issues and record for judicial review (only issues of law remain)

Rule: Moot cases are overripe and dismissed

• Exceptions:
• 1. Controversies capable of repetition, yet evading review, are not moot

2. Voluntary cessation - if P can show D will repeat wrong

3. Class action suits

Rule: Political Qs are non-justiciable - cts will not decide bc no manageable standards for judicial decision-making

1. Guarantee Clause (Art IV) protecting the republican form of govt

2. Foreign affairs

3. Impeachment procedures

4. Political gerrymandering

Must be express or implied congressional power (no general police power) 

Must be Necessary and Proper (Nec and Proper Clause) 

On MBE, Q will ask for strongest arg in favor of congressional power for passing a statute: NEVER = gen welfare, gen police power, or nec and proper on its own.

Cong can regulate the channels and instrumentalities of interstate commerce, and interstate activity that has a substantial effect on interstate commerce judged in the aggregate for econ activity but not non-econ.

Rule: All powers not granted to feds are reserved for states and people

- Congress cannot compel state regulatory or legislative action BUT can induce state action via strings attached to grants (Spending power) or adopt own regulatory program and enforce with fed officers. 

• - Congress may prohibit harmful commercial activity by state gov’ts
• (E.g. Congress may prohibit state DMVs from selling lists to merchants)

Rule: Congress may not create new rights or expand scope of rights.  Congress may only act to prevent or remedy violations of rights recognized by the courts.

- Such laws must be proportionate and congruent to remedying constitutional violations.

Rule: Tax must be rationally related to raising revenue

Cong can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause.  Includes spending for the general welfare. 

• Conditions on Grants ok if: 
• 1.Conditions expressly stated
• 2. Conditions relate to purpose of spending program

• 1. 13th Amendment 
• 2. 14th Amend
• 3. 15th Amend

Cong has broad power to legislate against racial discrim, whether public or private

Rule: Cong has the power to remedy violations of individual rights by the govt, but only as those rights have been defined by the court 

• -To be properly remedial, legislation must have congruence and proportionality.
• (I.e.: There must be a reasonable fit btwn remedial law enacted by Cong and the const’l right as declared by SCOTUS)

- Cong does not have the power to overrule the Court’s decision and define new rights

Rule: Congress has the power to ensure no racial discrim in voting

• 1. Commerce Power
• 2. Spending Power
• 3. Taxing Power
• 4. War and Defense Powers
• 5. Enforce Civil War Amendments

The Prez has the power to enforce the law, not to make or break it.

• 1. Pardon Power 
• 2. Appointment and Removal of Executive Officers 
• 3. Veto Power

Domestic Power

Prez can pardon or commute punishment for all fed crim offenses.

Domestic Power 

Prez has 10 days to veto legislation w/ or w/o reason, but no line-item veto.  

Overriding veto rqrs 2/3 majority vote of each house.

Only the Prez (or his appointees) can hire or fire exec officers. Senate has the power of rejection (advice and consent - but not power of appointment).

- Executive offices = Anyone who takes action on behalf of US

1. Commander in Chief = control over military decisions But Congress has exclusive power to declare war

2. Treaties and Exec Agreements

Treaties negotiated by Prez but need 2/3 vote of Senate. (Once approved has same authority as statute)

Prez’l negotiations not submitted for approval by Senate.

- Can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws.  

- Not binding like statute.

• 1. Impeachment 
• 2. Impoundment 
• 3. Legislative Veto

- An accusation of high crimes or misdemeanors rqring majority vote of the House (majority vote) and Trial by the Senate (2/3 vote for conviction)

- Applies to exec officers

- Remedy = Removal- no other penalty

-If statue gives Prez discretion to spend or withhold funds, may do so.  

- When statute unambiguously rqrs funds be spent, Prez cannot withhold.  No power to impound funds.

Unconst’l for Cong to pass law reserving to itself the right to disapprove future exec actions by simple resolution.

- If Cong wants to override future exec actions, it must change the law so prez has opp to veto new legislation.

- Cong cannot evade Prez’s guaranteed veto opp by passing a law saying that in the future it plans to govern by resolution

• 1. President 
• 2. Judges 
• 3. Legislators

- Has absolute immunity for official acts, but not for acts prior to taking office

- Has executive privilege not to reveal confidential communications w/ presidential advisers, but privilege can be outweighed by a specifically demonstrated need in crim prosecution.

Have absolute immunity for all judicial acts, but may be liab for non-judicial activities

US Senators and Reps (and their aides, but not state legislators) are protected by the Speech or Debate Clause

- Cannot be prosecuted or punished in relation to their official acts.

The Supremacy Clause of Art VI provides that the Const and laws and treaties made pursuant to it are the supreme law of the land. 

• 1. Express Preemption 
• 2. Implied Preemption

Under Supremacy Clause if federal law explicitly says it is exclusive, state law is preempted

Under the Supremacy Clause if federal law and state law are mutually exclusive then state law will be preempted if

1. Impossible to comply with both simultaneously BUT States may impose stricter laws, so long as Congress doesn’t clearly prohibit

2. If state law impedes achievement of federal objective,

3. If Congress evidences clear intent to preempt state law (i.e. wholly occupy the field)

- Fed govt gen immune from direct state regulation or taxation, but states can tax indirectly (taxing fed EEs)

• - States are not immune from direct fed regulation (pollution regs, environmental laws) State laws cannot shield state officers from fed liab
• - Exception: Anti-Commandeering Principle

Rule: In the absence of fed regulation, state regulation of commerce is valid so long as:

• 1. There is no discrimination against out-of-state interests;
• - Exceptions:
• a. State as a Market Participant - buying and selling
• b. Subsidies Federal Approval - authorizes and consents to state regulation of commerce (even if discriminates)

2. The regulation does not unduly burden interstate commerce AND

3. The regulation does not apply to wholly extraterritorial activity.

-No state may deny citizens of other states the privileges and immunities it affords its own citizens

Rule: There can be no legal rqt of residency for private EM, but public EM can have residency rqts.

Only applies to right to travel; otherwise a wrong answer

- E.g. Applies to laws discriminating against new residents of states

- Discrim against out-of-staters

- Not for corporations

-Private EM = admission to the bar or other occupational licenses

- Public EM = City hiring only city residents or rqring certain %age of city residents on construction projects

- Non-Serious discrim = recreational opps like hunting license

- Privileges and Immunities of Art. IV doesn’t apply

- If it burdens interstate commerce, it violates DCC if burdens exceed benefits

1. If it burdens interstate commerce, violates DCC unless law is nec’y to serve important gov’t purpose


2. If it discriminates against out-of-staters in their ability to earn their livelihood, P&I of Art. IV applies

P&I of Art. IV applies

• - Law must discriminate against out-of-staters
• - Discrim. must pertain to civil liberties or important economic activities (e.g. ability to earn a living)

Violate DCC unless law is nec’y to serve important gov’t purpose

• - Protectionist purpose NEVER important
• - Okay to prohibit importation of animals to preserve natural resources
• - Necessary – no less discriminatory alternative exists
• - Exceptions:
• a. Congressional approval of state law
• b. Market participant exception

Judgment of court in one state must be respected/enforced/etc. by the court of another state if:

• 1. First court had jurisdiction
• 2. Judgment was on the merits
• 3. Judgment is final

Have GOVT Action

Constitution only applies to govt action, not private conduct but Cong by statute may apply const’l norms to private conduct

• 1. 13th Amend
• 2. Commerce Power
• 3. 14th Amend
• 4. Anti-Discrim Statutes

- 13th Amendment can be used to prohibit private race discrimination

- 13th itself does NOT prohibit race discrim; only prohibits slavery But Congress can regulate race discrim. pursuant to 13th

Congress power can be used to regulate private action

Congress cannot use section 5 of Fourteenth Amendment to regulate private behavior, only state and local gov’t

- Exceptions:

1. Situation where private conduct must comply w/Constitution

a. Public function exception – private entity performing task traditionally and exclusively done by gov’t

b. Entanglement exception – gov’t affirmatively authorizes, encourages, or facilitates unconstitutional activity.

- Applies directly only to federal gov’t

- Applies to state/local gov’ts through incorporation into due process clause of Fourteenth Amendment.

• - Exceptions:
• 1. Second Amendment right to bear arms
• 2. Third Amendment right not to have soldiers quartered in your home
• 3. Fifth Amendment right to grand jury indictment in criminal cases
• 4. Seventh Amendment right to jury trial in civil cases
• 5. Eighth Amendment right against excessive fines

Rule: Is the law rationally related to a legitimate int?

- Challenger has BOP

- Classification - All cases that don’t follow other tests)

Rule: Is the law substantially related to an important govt int?

- Govt has BOP

- Classifications of legitimacy and gender

Rule: Is the law necessary for a compelling int? Least restrictive means

- Govt has BOP

- Classifications that are suspect or fundamental rights

Right to notice and hearing if deprived of life, liberty or property

- Loss of significant freedom provided by Constitution or statute

- Harm to reputation is not a deprivation of liberty (e.g. wrongful posting of photo of shoplifter did not violate procedural due process)

- Prisoners rarely have a liberty interest

- Deprivation of property if there is entitlement and that entitlement is not fulfilled

- Entitlement = reasonable expectation of continued receipt of a benefit

The test: Court will balance:

• 1. The importance of the interest to the individual
• 2. The ability of add’l procedures to decrease chance of erroneous deprivation
• 3. The government’s interests in efficiency and cost

1. Termination of welfare benefits;

2. Non-emergency revocation of DL,

3. Public EM fired for cause unless significant reason not to keep EE on job.

So long as hearing is prompt and fair

1. Termination of SS benefits

2. Termination of disability benefits

3. Dismissing students for academic reasons

1. What is the classification?

2. What level of scrutiny should be applied?

3. Does this law meet the level of scrutiny?

1. Equal Protection Clause of Fourteenth Amendment only applies to state and local gov’ts

2. Equal protection is applied to federal gov’t via Due Process Clause of Fifth Amendment

Substantive Due Process and Equal Protection Clause

Violates Substantive Due Process

Violates Equal Protection

1. Economic Rights (Takings, K Clause, Prohibited Legislation) 

2. Privacy Rights 

3. Fundamental Rights

1. Suspect Classification 

2. Fundamental Rights

- Substantive Due Process 

- Rational Basis Test 

- Takings, K Clause, Prohibited Legislation

Rule: Private property shall not be taken for public use without just compensation.

1. Taking (comp) v. Regulation (no comp even if reduces value of prop)

Adverse econ impact of govt’s actions does not nec mean there has been a taking (ie: new prison built next door to beautiful countryside home).

KEY Q - If the govt physically occupies a private O’s prop, then a taking has occurred and it owes just comp (even if only a tiny portion)

No Physical occ - gen means no taking

Not a taking and no comp rqd so long as zoning advances legitimate ints and does not extinguish a fundamental right to ownership Regulatory taking - A zoning regulation can be considered a taking when it leaves no economically viable use for the prop (rare)

Often conditioned on “concessions” by the developer, such as building an access road or donating land to park. Such extractions valid so long as they can be seen as offsetting the adverse impact of the development.

Right to 

• 1. Marriage
• 2. Contraception 
• 3. Sexual Intimacy
• 4. Abortion 
• 5. Parental Rights
• 6. Family Relations
• 7. Obscene Material
• 8. Refusal of Medical treatment (but not right to commit suicide)

Whether law imposes an undue burden on woman's right to terminate. 

• - informed consent rqts - allowed
• - 24 hr waiting period - allowed
• - parental notification - allowed
• - parental consent - not allowed (narrow exception if can get consent from judge who has to give it)
• - spousal rqts - not allowed

1. Race, Ethnicity and National Origin

2. Alienage (citizenship requirements)

May be explicit on the face of the statute, or may be proved by history of discrim application, or by extrinsic evidence about the purposes of those who passed the law.

Rule: Affirm Action valid when it specifically corrects past discrim by the specific dept or agency now engaged in affirm action

- Gen societal discrim does not justify affirm action

- Preferential admission to colleges and universities allowed if nec to achieve diverse student body (compelling int) BUT Procedures and standards must be holistic and flexible NOT allowed for secondary schools

Rule: States and localities cannot rqr US citizenship for access to private EM or govt benefits

• - Fed Govt exempt from Strict Scrutiny test:
• Fed govt Fed classifications based on US citizenship valid unless arbitrary and unreasonable

- Participating govt functions = Jobs that have partic relevance to the role of govt functions, including voting, serving on jury, and working in law enforcement position, or public school teacher

- Undocumented aliens - not a suspect class but cannot deny children public edu

- Intermediate Scrutiny 

- Gender and Legitimacy

- Rational Basis 

- Age, wealth

Govt has to waive filing fees for indigents when charging fees would deny a fundamental right.  ex - divorce; transcript for appeal of crim conviction; transcript for appeal of termination of parental rights

Fundamental Rights 

• 1. Right to Travel
• 2. Voting and Ballot Access

1. Religious Belief - Absolutely protected

2. Religious Conduct - Qualifiedly protected

- Laws regulating religious conduct bc of its religious significance are unconstitutional (aimed at religion)

- Neutral regulation of conduct can be enforced despite religious objections

- No right to accommodation / exemption from neutral, generally applicable regulations of conduct (Peyote case)

- Exception: Ministerial Exception - SCOTUS held that 1st Amend rqrs a ministerial exception to EM laws - Fed govt cannot regulate EM relations btwn a religious institution and its ministers (defined broadly)

Lemon Test

1. Does the law have a secular purpose?

2. Does the law have a primary effect that neither advances nor prohibits religion?

3. Does the law avoid excessive government entanglement with religion?

It is a violation of the Establishment Clause for the govt to endorse one religion over another and also to endorse religion over non-religion - to prevent coercive endorsement of religion that may override indiv choice BUT, many endorsements upheld, like “In God We Trust”

• - Strict Scrutiny 
• - Subject matter (depends on topic) or Viewpoint (depends on ideology)

- Intermediate Scrutiny

Rule: Laws regulating expressive conduct are upheld if:

• 1. They further an important interest;
• 2. That int is unrelated to the suppression of expression; and
• 3. The burden on expression is no greater than nec.

• Analysis:
• - If a govt is trying to suppress a message --> unconstitutional

- If the govt is trying to pursue an int unrelated to the suppression of the expression --> constitutional

- Court orders suppressing speech must meet strict scrutiny

- But, if order is procedurally proper: They must be obeyed until vacated or overturned

- One who violates cannot later challenge

• - Gov’t can require license for speech only if: 1. Important reason for licensing
• 2. Clear criteria leaving almost no discretion
• 3. Procedural safeguards
• 4. Prompt determination of requests Judicial review

- Vagueness- Vague laws - give no clear notice of what is prohibited and thus violate due process

- Overbreadth - Overborad laws - go too far in regulating speech. Substantially burden more speech than is nec to protect a compelling int and violate 1st Amend

Rule: Only time, place, and manner may be regulated in a public forum if meet 3 rqts:

1. Content neutral, on its face as applied (NO executive discretion)

2. Alternative Channels of communication must be left open. AND

3. Must narrowly serve a significant state int.

Under this test most time, place, or manner regulations upheld - No compelling int

Includes any kind of govt prop that is not a public forum

- Rule: Any reasonable regulation of speech will be upheld.

- Viewpoint discrim is invalid (e.g., btwn members of diff political parties)

- Disruption of the functions of govt - One should go outside to public sidewalk

Rule: Defined by the Rule of S

• 1. Sexy: Must be erotic; appeal to the prurient int
• 2. Society Sick: Must be patently offensive to the average person in the society.

3. Standards: Must be defined by the proper standards for determining what is obscene, not vague and/or overbroad

4. Serious Value: The material must lack serious value. Determ made in court, not the jury, and it must be based on a national standard, not a local one.

- Child Porn: Prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home.

Speech is not protected if it is an incitement to immediate violence

Words likely to provoke an immediate breach of the peace

- Must be aimed/targeted at someone, and that person might hit back

- Gen vulgarity not enough

- In theory NOT protected speech, but fighting word statutes on bar exam are vague and overbroad (laws against hate speech)

Most regulations of commercial speech are struck down.

- So long as the advert is truthful and informational, it must be allowed.

- Test: Regulation of commercial speech must directly advance a substantial govt int and be narrowly tailored to that int.

- Misleading Speech: May be prohibited

1st Amend restrictions do not apply to the govt as a speaker

- Govt as a speaker is free to express a point of view

- Govt does not have to accept all monuments donated by a private person simply bc accepts one.

• - Actual Malice
• - Comp Damages , presumed / punitive
• - P must prove Falsity

• - Actual Malice
• - Comp, presumed/ punitive
• - P must prove falsity

• - Negligence and Actual Injury 
• - Comp for actual injury; 
• - Presumed or punitive for actual malice
• - P must prove falsity

• - Unclear (Negligence) 
• - Comp for actual injury; 
• - presumed and punitive require actual malice
• - BOP on D to prove truth

1. Laws that prohibit or punish group membership must meet strict scrutiny.

2. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny

3.Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity

- 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.