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Source of Power: the Judicial Branch
- The federal courts derive their power from Article III – either federal question of law or diversity jurisdiction.
- The jurisdiction of federal courts is limited to cases or controversies. The 11th Amendment and State Sovereign Immunity limits the courts’ power.
State Sovereign Immunity
- One cannot sue a state for money damages in state or federal court unless the state consents, or U.S. Congress expressly says so – cannot be ambiguous.
- 11th Amendment protects state agencies, not local governments.
Suing state/federal agencies
- While you cannot sue the government, you can sue a state officer and seek damages from the officer personally.
- You can always seek injunctive relief by enjoining the appropriate state offer. Damages from the state treasury are barred unless expressly authorized to enforce individual rights.
Jurisdiction for the Court
- The Supreme Court has limited original jurisdiction (typically, disputes between states). The Supreme Court has appellate jurisdiction which it approves by discretionary writ of certiorari.
- Congress can make exceptions to the Court’s appellate jurisdiction through exercise of legislation.
- The Supreme Court sits in review of all federal courts, and may review the constitutionality of a state court decision when it rests on federal grounds.
- The Court lacks jurisdiction if the judgment below rested on adequate and independent state grounds.
- Adequate: the state round controls the decision no matter how a federal issue is decided – when the victorious party would win anyway under state law.
- Independent: the law does not follow or depend upon an interpretation of federal law. However, if state law follows federal law, no ASIG.
- Ambiguity: the Court can review the federal judgment but must return it to state supreme court for reconsideration of state law.
Standing to Sue in Court (basic three)
To have standing to sue, there must be injury, causation and redressability.
- Must be concrete, not abstract.
- Need not be economic, but ideological objection is not an injury.
- Organization has organizational standing when its members have standing.
The defendant’s acts or omissions must have caused the injury.
- The court must be able to remedy the injury. If in the past, damages. If future injury threated, then injunction.
- Past injury does not give rise to standing for future injury – must prove it will happen again.
- Federal taxpayers always have standing to contest their own tax liability.
- Do not have standing to challenge government expenditures
- Narrow exception for establishment of religion challenge to specific congressional appropriation.
- Legislators lack standing to challenge a law that they voted against.
Third Party Standing
- Third party standing is when a plaintiff raises the rights of another not party to the suit.
- Generally, no standing except for parties to an exchange or transaction who raise the rights of the other side of the transaction.
A case is not ripe for adjudication unless there is actual harm or the immediate threat of harm, except for controversies capable of repetition which evade review (abortions).
The court may not issue an opinion ruling on constitutionality of pending legislation.
- Courts will not decide these non-justiciable cases because there are no manageable standards for judicial decision-makinga.
- Guarantee clause (republican form of government), foreign affairs, impeachment procedures, and political gerrymandering which are not motivated by insidious racial means.
Congress: Commerce Clause
- Commerce Power: is derived from Constitutional power to regulate interstate commerce. Congress can regulate:
- i. The channels of interstate commerce
- ii. The instrumentalities of interstate commerce
- iii. Intra/interstate activity that has a substantial effect (judged in the aggregate) on interstate commerce.
- iv. For non-commercial, non-economic non-commercial activity can be regulated by Congress only if it can demonstrate substantial effect on interest commerce.
- For commercial or economic activity, burden is on the challenger to demonstrate the lack of effect upon interstate commerce.
Congress: Taxing and Spending Powers
- Taxing power is invoked whenever Congress imposes a tax, even if the tax is meant to prohibit good/activity in question. Must be rationally related to raising the revenue.
- Spending power is invoked any time Congress spends for the general welfare. This power can be used to accomplish things that it could not do by direct regulation under Commerce Clause.
Congress: Anti-Comandeering Clause
- Congress cannot force states to adopt or enforce regulatory programs, and it cannot commandeer state and local officers to carry out federal programs.
- It can bribe states to follow suit through Spending power, and it can adopt its own regulatory programs and enforce them with federal officers.
Congress: War and Defense Power
- Congress has the power to declare war and the power to maintain the Army, Navy & Air Force.
- It has the power to provide for military discipline of members of the US armed forces, enemy combatants and enemy civilians, but it cannot provide for military trial of US civilians.
Congress: the Civil War Amendments
- 13th Amendment: Congress has broad power to legislate against private discrimination, be it public or private.
- 14th Amendment: Congress has the power to remedy violations of individual rights by the government when these rights have been defined by courts (not private acts, however). Legislation must have congruence and proportionality – reasonable fit – between remedial law passed by Congress and constitutional right proclaimed by SCOTUS. Congress cannot overrule Court’s decision to define new rights (would need to be constitutional amendment).
- 15th Amendment: Congress has the power to ensure no discrimination in voting process.
Constitutional rights determined by SCOTUS
- Legislature cannot overturn or impinge upon.
- Must pass constitutional amendment.
Executive Power: Domestic Affairs
- President has the power to enforce the law, not to make it or break it.
- Power is at its ebb when authorized by statute.
- The following powers cannot be controlled by statute (exclusively executive): (1) pardon power – pardon or commute all federal crimes, (2) veto power – within 10 days, (3) appointment and removal of executive officer – although some appointments require advice and consent of Senate.
Executive Power: Military
- President is the Commander In Chief of the armed forces and has control over military decisions.
- Congress has right to declare war.
Executive Power: Treaties
- Negotiated by president with a foreign country, but require 2/3 vote of the Senate.
- Once approved, same authority as statutes.
- A treaty which is judicially enforceable upon ratification.
- Treaties which do not self-execute only becomes judicially enforceable by act of Congress.
- Presidential negotiations not submitted for approval by the Senate.
- Can be authorized, precluded, or overridden by federal statute, but will take precedence over conflicting state laws.
- Not binding like a treaty.
- Applies to all executive officers after an accusation of high crimes or misdemeanors.
- Majority vote in HR to bring trial.
- Senate tries the case, requiring 2/3 vote of the Senate.
- Remedy is removal from office, but no other penalty.
- When statute gives president discretion to spend or withhold funds, he has discretion.
- If a statute says unambiguously that funds must be spent, the President must spend the money.
- Unconstitutional – these are laws where Congress reserves itself the right to disapprove future executive action by simple resolution.
- Requires new law passed by House and Senate which is presented to the President.
- BICAMERALISM & PRESENTMENT REQUIREMENT
Line item vetoes
- Similarly unconstitutional – violation of presentment requirement.
- The president cannot pass parts of a law and veto others.
- BICAMERALISM & PRESENTMENT REQUIREMENT
- President has absolute immunity for official acts, but no immunity for act prior to taking office. He has an executive privilege not to reveal confidential communications with his advisors, but that can be outweighed by a specifically demonstrated need in a criminal prosecution.
- Judges have absolute immunity for all judicial acts, but may be liable for non-judicial roles.
- Federal legislators are protected by the Speech and Debate Clause, where senators, congressmen and their aides cannot be prosecuted or punished in relation to their official acts. (Non-official acts are punishable accordingly).
Federal and State powers
- Federal powers are superior, but many concurrent state powers.
- Some powers are exclusively federal.
- Federal government immune from direct state regulation/taxation.
- Indirect taxes on federal employees permissible.
- States are not immune from direct federal regulations, and state law cannot shield state officers from federal liability.
Prevents federal government from forcing the states to implement government programs.
Comity Clause – Privileges and Immunities of State Citizenship
- Forbids serious discrimination against out of state individuals (not corporations).
- Typically involves employment – there can be no legal requirement of residency for private employment.
- Public employment may require residency requirements.
- For non-serious discrimination, the state may discriminate with regard to recreational opportunities (hunting licenses).
Dormant Commerce Clause
- In absence of federal regulation, state regulation of commerce is permissible so long as (1) there is no discrimination against out of state interests, (2) the regulation does not unduly burden interstate commerce, and (3) the regulation does not apply to wholly extraterritorial activity.
- Protects individuals and business entities.
No discrimination against out of state interests
- No treating out of state interests differently from in-state interests, except when
- (1) state as market participant (when state buying or selling goods or services, it can choose to deal with in-state persons);
- (2) subsidies (a state can always choose to subsidize only its own citizens); and
- (3) federal approval – dormant commerce clause only when federal government has not spoken.
Unduly burden interstate commerce
- A balancing test.
- Only when it is outrageously costly relative to the benefits of the regulation is a non-discriminatory law struck down.
Wholly extraterritorial activity
A state cannot regulate conduct occurring wholly beyond its borders.
State taxation of interstate commerce
- Discriminatory taxation will be struck down unless Congress consents.
- Non-discriminatory taxation upheld unless unduly burdensome – valid when (1) substantial nexus between taxing state and property/activity to be taxed, and (2) fair apportionment of tax liability among states.
Ad valorem property taxes
Taxes levied upon personal property which come into the state.
States tax commodities
- Tax of goods that move from state to state which come to rest within the state on a specified day.
- Full tax paid to every state where goods are stopped for a business purpose, but not when passing through.
The transportation equipment for commodities, and each state where an instrumentality is used can tax the value of that instrumentality.
Federal preemption of state laws
- State law is not preempted because it addresses the same subject matter/topic of a federal statute. There must be incompatibility or conflict – e.g. impossible to follow federal and state law.
- Congress also may completely preempt state laws in a particular field – any state law inconsistent with federal law is preempted.
- agreements amongst states.
- Enforceable, but if the compact affects federal rights, Congress must approve.
Full Faith and Credit
Courts must give full faith and credit to judgments rendered by other states’ judgments, so long as the rendering court had proper jurisdiction to render the judgment.
- Any government action, whether state or local. Government cannot be significantly involved in private discrimination such as:
- (1) facilitating private discrimination,
- (2) profiting from private discrimination or
- (3) enforce private agreement to discriminate.
- Government is not required to prevent private discrimination.
- Government acts constitutionally when conduct is neutral and even-handed.
Strict scrutiny for suspect classifications and fundamental rights. Law must be (1) necessary for a compelling government interest and (2) narrowly tailored in furtherance of that interest.
Government bears the burden of proof.
- Intermediate scrutiny applies to legitimacy and gender-based discrimination. (1) Substantially related to (2) an important government interest.
- Burden of proof generally on challenger.
Rational Basis Scrutiny
- Rational basis for most statutes (residual). Is law (1) rationally related (2) to legitimate government interest.
- Burden of proof on challenger.
- Difficult to meet; must show law is without rational basis or arbitrary and capricious.
Procedural Due Process: triggers, amount of process, timing of hearings.
- This is triggered when life, liberty, property taken without due process of law.
- Life: death penalty requires procedural due process.
- Liberty: physical confinement, probation, parole, physical injury or any restriction on legal rights. Not reputational injury.
- Property: one has a property interest in his government job or benefit when he has a legitimate entitlement to continued enjoyment of job or benefit. Mere expectation of continued employment will not suffice.
Entitlements and thus property, and afforded pre-deprivation due process.
What process is accorded?
- Courts balance three factors – (1) interest at stake, (2) value of the procedure, and (3) government’s interest in efficiency and cost.
- Timing of hearings: sometimes, hearings must occur before deprivation. Other times, the hearing can occur after the action so long as the hearing is prompt and fair.
Firing of Public Employees
Public employees who can be fired only for cause must be given some opportunity to be heard prior to discharge unless there is a significant reason not to keep the employee on the job (then hearing must be prompt/fair).
Substantive Due Process
- Substantive due process is the basis on which a party may challenge a law when a right is denied to everyone.
- Implicated when a law affects a fundamental right.
Right of interstate travel and settlement
- Fundamental right, but not fundamental international right.
- States can impose reasonable residency restrictions for political participation and government benefits.
- Generally 30-60 days; one year impermissible except for college education and jurisdiction to divorce.
- A fundamental right to all citizens age 18 and older. Poll taxes are unconstitutional.
- Short-term residency requirements permitted.
- Congress controls residency requirements for federal elections; the state controls residency requirements for all other elections.
- A state can impose requirements to be listed on a ballot, such as longer residency/filing fees/nomination petitions so long as a serious candidate can reasonably comply.
Right for marriage
Fundamental, although state can limit marriage based upon age or co-sanguinity.
Fundamental right for anyone to purchase birth control, regardless of marital status.
- Not a fundamental right.
- No legitimate state interest in regulating non-commercial sexual intimacy between consenting adults of any gender.
- Not a fundamental right.
- States cannot impose an undue burden on a woman’s right to terminate her pregnancy prior to the viability of the fetus, except to preserve life/health of the mother.
- Informed consent allowed.
- 24 hour waiting periods allowed.
- Parental notification requirements allowed.
- Parental consent requirements disallowed.
- Spousal notification and consent requirements disallowed.
- Government financing not required.
- Fundamental right to raise children as parents see fit, including choice of religious or private school.
- Right may be lost due to abandonment, abuse or neglect.
- Fundamental right to read obscene material in privacy of one’s own home, but not to purchase, sell, import or distribute.
- Child pornography is not protected.
Refusal of medical treatment
Liberty interest in refusing medical treatment. No right to commit suicide.
Equal Protection Clause (Basics)
- Equal protection is invoked when a law denies a fundamental right to some persons.
- 14th amendment privileges and immunities of national citizenship means nothing after Slaughterhouse Cases.
- Never the correct answer.
- Two Clauses: (1) 5th amendment applies to acts of the federal government. (2) 14th amendment applies to localities and states.
Alienage and Equal protection
- Suspect classification based upon US citizenship are generally suspect classifications which trigger strict scrutiny, except for:
- (1) Congress’ plenary power over citizenship and naturalization,
- (2) federal classifications on US citizenship,
- (3) state/local jobs which have particular relevance to the role of government,
- (4) state/local citizenship for government positions and
- (5) law enforcement officer/public school teacher.
- States and localities cannot require US citizenship for access to private employment or for government benefit.
Age discrimination in employment
Barred by statute but not by the Constitution – rational basis.
Not a suspect or quasi-suspect classification. Governmental must waive fees for indigents when charging fees which would deny a fundamental right (divorce, transcripts for criminal trials, transcript for appeal of determination of parental rights).
Not a fundamental right.
One person, one vote
- Requirement for districts of approximately equal size whenever elections are based upon district.
- Special purpose governments may have a franchise based upon the special purpose.
- Racial gerrymandering is unconstitutional when it is done with discriminatory purposes or designed to dilute the votes of minorities.
- It is permitted under the Voting Rights Act to ensure minority success to create minority/majority – race cannot be the predominant or only factor.
- Political gerrymandering is a non-justiciable question.
Suspect Classifications: Race
- Race, ethnicity, national original distinctions trigger strict scrutiny and are generally struck down.
- Discriminatory purpose is required – insufficient to show disproportionate impact.
- May be explicit, proven by history discriminatory application or extrinsic evidence about intent of persons who passed the law.
- De jure segregation unconstitutional; de facto is unconstitutional.
- A racial classification which seeks to benefit a racial or ethnic minority.
- Subject to strict scrutiny.
- Affirmative action is valid when it specifically corrects past discrimination by a specific department or agency now engaged in affirmative action – it cannot be general societal discrimination.
- Preferential treatment not allowed in secondary schools, but is permissible in colleges/universities when (1) necessary to achieve a diverse student body and (2) diversity is essential to achieving a diverse class.
- Racial preferences must be holistic and flexible, and quotas are not allowed.
- Private property may not be taken for public use without just compensation.
- (1) Private property – self-explanatory.
- (2) Taken – transfer of property from private owner to government. Any physical occupation, however slight, constitutes a taking.
- (3) For public use – any use rationally related to a conceivable public purpose. Can be taken to resell to a private developer.
- (4) Without just compensation – fair market value at the time of the taking. Regulatory takings – diminution of value of property due to regulation does not require compensation.
A regulatory taking occurs when occurs when (1) regulation leaves no economically viable use for the property, or (2) physical occupation.
Takings and Zoning
- Zoning is constitutional and does not require just compensation when (1) zoning advances legitimate government interests and (2) does not extinguish a fundamental attribute of ownership.
- Development permits conditioned on developer concessions are constitutional when proportionate to offset the adverse impact of the development.
Prohibited Laws (Attainder, Ex Post Facto, Contracts Clause)
- Bill of attainder is legislative punishment imposed without judicial trial – unconstitutional.
- Ex Post Facto Laws – unconstitutional to expand criminal liability by (1) creating a new crime after the fact or (2) increasing penalties for past conduct.
- Contracts Clause bars states from legislative impairment of existing contracts unless overriding need.
- Lemon Test: (1) secular purpose (2) primary purpose that neither advances not inhibits religion, and (3) avoids excessive government entanglement with religion.
- Neutral aid to religious schools permitted.
- Endorsement: violation for the government to endorse one religion over another or to endorse non-religion over religion – concerns with coercion.
- Officially sponsored school prayer unconstitutional.
- Officially sponsored graduation prayer unconstitutional.
- Non-inspirational Bible reading constitutional.
- Display of Ten Commandments permitted for secular purpose, not to inspire belief.
- Laws prohibiting teaching evolution unconstitutional.
- Legislative prayer okay for historical practices.
- Nativity scenes constitutional when other items which dilute religious message
Free Exercise Clause
- Religious belief: Constitutional protection in religious belief is absolute.
- Religious conduct: Constitutional protection in religious conduct is qualified.
- Exceptions include:
- Laws regulating religious conduct because of religious significance unconstitutional as laws aimed at religion.
- Generally applicable laws can be enforced despite religious objections. No right to accommodation.
- Ministerial exception – non-discrimination employment laws cannot be applied to ministers who work for religious organizations – this is construed broadly.
- Campus access – a state university that allows students to meet on campus must allow student religious groups equal access.
- Content-Based Regulation triggers strict scrutiny.
- (1) must necessary to achieve a compelling government interest, and (2) be narrowly tailored in furtherance of that interest.
- BOP on government.
- Symbolic speech.
- Laws are upheld when they (1) further an important interest (2) unrelated to the suppression of expression and (3) burden is not greater than necessary.
- If government is trying to suppress a message, unconstitutional.
- If government is pursue an interest unrelated to speech which impinges upon speech, upheld.
vague laws are unconstitutional because they give no clear notice of what is prohibited, thereby violating due process.
- Laws which would be constitutional except that they go too far in regulating speech.
- A burden substantially more speech than is necessary to protect a compelling government interest.
judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful.
Regulation of time/place/manner are laws concerning regulation of speech in a public forum.
A public forum is a place traditionally reserved for speech activities, such as a street, park and public sidewalk.
- Government offices, jails, power plants, military bases – government power is at its height, and any reasonable regulation of speech is valid except where it would discriminate based upon viewpoint.
- Disruption of functions of government not permitted, and speaker can be forced to go to a public forum (sidewalk outside).
Limited public forum
- Not a traditional public forum, but one that the government opens to all comers.
- Time/place/manner regulations are allowed.
- Three requirements – (1) content neutral regulations on its face and as applied which do not allow for executive discretion; (2) alternative channels of communication must be left open (cannot be a blanket prohibition); and (3) must narrowly serves a significant state interest.
- Not compelling – “makes sense to a judge.”
Unprotected expression - Obscenity
- The rule of S.
- (1) Sexy; “appeals to the prurient interest;”
- (2) society sick – patently offensive to the average person in society – local or national area;
- (3) standards – must be defined by standards that are not vague or overbroad;
- (4) serious value – not obscene if serious artistic, scientific, education or political interest.
- Made by court; national standard.
Unprotected expression -Incitement
Free speech not protected when incitement to immediate violence
Unprotected expression - Fighting words
- Speech likely to provoke an immediate breach of peace.
- Aimed at someone who might hit back, and general vulgarity is insufficient.
- Almost always unconstitutionally vague and/or overbroad.
Unprotected expression - Defamation
False statements of fact damaging a person’s reputation can be prohibited.
- If (1) truthful and (2) informational, then permissible.
- Regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest.
- Misleading speech may be prohibited.
- 1st amendment rights do not apply to the government as a speaker.
- The government can express a point of view.
- Government need not accept all monuments – when government is controlling the message, it is entitled to say what it wants.
Corporations free speech rights
have same free speech rights as persons.
Regulation of the Media
The media has no special privilege concerning freedom of speech except for broadcasters.
Government Employees Free speech
government employees cannot be hired or fired based upon political party, political philosophy or acts of expression – except for confidential advisors to the president or policy-making employees.
Campaign Finance & Free Speech
- Campaign contributions can be regulated, provided that the limits are not unreasonably low.
- Coordinated expenditures are disguised contributions where campaign is in control – can be regulated.
- Direct expenditures in support of a candidate/campaign/political issue cannot be regulated.
- Applies to persons, as well as corporations and unions.
Freedom of Association
- One cannot be punished because of political associations.
- Loyalty oaths to Constitution for federal employees permissible; other oaths are vague/overbroad.
- Bar examiners can investigate for good character but not deny bar admission because of political affiliation.
- States cannot require open primaries for political parties.
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