Constitutional Law

Fundamental Rights not 1A

marry, procreate, custody of children, keep family together, control raising of children, purchase and use, travel, vote

1A fundamental rights

freedom of speech, association, exercise (if the burdening religion is not a neutral law of general applicability)

regulations to FR historically permitted

right to possess firearms

not a FR

right to practice a trade or profession, physician assisted death, education

unknown level of scrutiny

engage in private consensual homosexual activity, refuse medical treatments

valid durational residency requirement

30 day residency to vote in state, 1 year residency to get divorced

Valid Sex based classification

discriminatory statutory rape laws, all male draft, requiring fathers to prove parentage of nonmarital children born abroad so they can obtain US citizenship

invalid sex based classification

death benefits, preemptory strikes, alimony for women only, different min drinking ages

Three requirements for case or controversy

standing, not ripe or moot, no advisory opinions

Ripeness

before harm occurs, to bring action harm must actually be threatened

Mootness

matter can’t have been resolved. Except you can bring an action when situation capable of repetition yet evading review

Plaintiff standing

must have a concrete stake in the outcome at all stages of litigation

three requirements for standing

injury in fact, causation, and redressability

injury in fact

specific, not theoretical. typically no taxpayer standing unless spending measures violate establishment clause

causation

causal connection between injury and conduct complained of

redressability

decision in plaintiff’s favor can eliminate harm

Asserting third party claims

generally can’t, unless claimant 1. has standing in its own right, 2. close relationship with injured party, and 3. injured party unlikely able to assert own rights

organizational standing

organization may sue for its members if: 1. members would have standing to sue, 2. interest germane to organization’s purpose, 3. neither claim nor relief requires participation of individual members

Adequate and independent state grounds

fed court won’t hear appeal from state court if adequate and independent nonfederal grounds support state decision

Things that prevent standing

11A, abstention, political question

11A and sovereign immunity

can’t sue government without its permission. waiver can be express or structural, exceptions for actions against state officers and congress can remove state’s immunity under 14A but it must be unmistakably clear

Structural/implicit consent under 11A

implicit consent to yield immunity with respect to certain federal powers based on the plan of the constitution

abstention

federal court will abstain if an ongoing action in state court will resolve unsettled question of state law

political questions

are not justiciable

where do Federal Government Powers come from

powers provided by the Constitution, Congress doesn’t have general police powers, can’t adopt laws for health, safety, and welfare of people

necessary and proper clause

congress can make laws necessary and proper for executing any power granted to any branch of federal government

Taxing and Spending power

congress can tax and spend for any public purpose not prohibited by Constitution, may regulate beyond enumerated powers by attaching strings as long as strings are: clearly stated, related to purpose of grant, and not unduly coercive

Commerce power

regulate channels of interstate commerce, instrumentalities of interstate commerce, and activities with substantial economic effect on interstate commerce

commerce activity power

generally must be economic or commercial, regulate existing activity, can’t compel activity, can prohibit private discrimination if substantial effect on interstate commerce

Other powers Congress has

declaring and funding war, property, investigations, bankruptcy, postal services, citizenship, admiralty, coining money, fixing weights and measures, granting patents and copyrights

Limitations on Congress v. States

can’t compel state regulatory or legislative action (10A)

Congress Delegation power

may delegate its power to other branches. Must set intelligible standards, major questions doctrine

major questions doctrine

agency seeking to adopt rules with extraordinary economic and political significance must point to language clearly granting authority

Separation of powers/enactment

whether law properly enacted: bicameralism, presentment, no line item veto

Domestic powers of president

appointment and removal process, pardon power, veto power, chief executive

appointment and removal powers

appoints officers and SC justices with advice and consent of senate, Congress can authorize Prez to appoint inferior officers, can remove any executive officer (congress can require good cause when independence is desirable)

pardon power

for federal crimes only

veto power

has 10 days to veto, if not and congress in session = approved, congress out = pocket veto

power as chief executive

executive orders, express or implied authority from congress - likely valid, congress silent - valid unless impinges on powers of other branch, against congress - likely invalid

power over external affairs (foreign)

commit troops, sign treaties with 2/3 approval from senate, enter executive agreements with foreign countries

executive privilege

extends to documents and conversations but must yield if court decides info needed in criminal case

executive immunity

president immune from suits for civil damages for actions taken as president, immunity extends to aids exercising discretionary authority from president

impeachment

president, vice president, and all US civil officers may be impeached for treason, bribery, or high crimes and misdemeanors. Majority vote in House, trial in senate with 2/3 vote needed to convict

what is federalism

focuses on relationship between state and federal government, including which has the power to take a given action. Some powers are reserved to one or the other, but most power is shared

Supremacy clause and preemption

valid federal law is supreme, and conflicting state law is invalid/preempted

express preemption

narrowly construed

implied preemption

Actual conflict, object preemption,

field preemption

actual conflict preemption

state law invalid if laws are mutually exclusive

object preemption

state law invalid if it impedes federal objective

field preemption

state law may be preempted if federal scheme is comprehensive or federal agency oversees area

supremacy clause and preemption presumption

presumption against preemption, especially historic state police powers. Look for clear and manifest purpose of congress to preempt or occupy the field

If federal law impacts a state

ask is the 10th amendment implicated

t/r likely valid under 10A

tax/regulation applies to both private and state entities

t/r generally invalid under 10A

tax/regulation applies only to states

Commandeering state officials

federal government can’t require states to regulate their own citizens

Exceptions to tax/reg only to states

non-coercive strings on federal grants of money, civil rights (can restrict states from discriminating and violating equal protection and DP)

State taxation/regulation of fed

based on supremacy clause (intergovernmental immunity doctrine) state can’t directly tax fed govt, can’t directly regulate fed govt, state may tax federal employee and contractor salaries (indirect tax)

State regulation/taxation of interstate commerce (DCC and P&I)

consider DCC and P&I when state regulation affects interstate commerce and no federal legislation preempts, supersedes, or authorizes state law

Privileges and Immunities Clause of Article IV definition

State can’t deprive citizens of other states of P&I it accords its own citizens

when does state violate P&I Art IV

discriminates against out of staters with regard to important economic interest (especially ability to earn a living) or FR, targets laws that are intentionally protectionist

Exception to discriminatory state law under P&I art IV

discrimination is necessary to serve important government purpose, no reasonable alternatives

Requirement to sue under P&I Art IV

must be US citizen, not corporation or noncitizen

Privileges or Immunities Clause 14A

state laws that interfere with right to interstate travel are unconstitutional

what does the Dormant Commerce Clause prohibit

state laws are unconstitutional if they place an undue burden on interstate commerce

When are DCC laws likely invalid

state law that intentionally discriminates against interstate commerce

Exceptions to DCC violation

1. necessary to achieve important state interest, no reasonable alternatives available

2. congressional approval

3. market participant

4. states given more leniency when law involves performing traditional government function

DCC - nondiscriminatory state law burdens interstate commerce

invalid if burden on interstate commerce outweighs legitimate state interest (balancing test)

Individual Guarantees Against governmental or private action

state action limitation, scrutiny, PDP, Takings, Prohibitions against retroactive legislation, SDP, FR, Equal Protection

when are private individuals subject to constitution (state action)

generally, constitution only applies to government action. Sometimes private action can be attributed to government. Look for traditional and exclusive government function, or significant state involvement

what is significant state involvement

official encouraging or use of judicial machinery, entwinement of state and private actors, NOT enough = mere regulation, provision of public services, licensing, leasing land, grants of land

Strict scrutiny

uphold only if necessary to achieve a compelling government purpose and no less burdensome alternative exists

when is strict scrutiny used

regulation involves suspect class or FR

Intermediate Scrutiny

upheld if substantially related to important government purpose

when is intermediate scrutiny used

regulation involves quasi-suspect classification

rational basis

upheld if rationally related to legitimate government purpose

when is rational basis used

default, applies when regulation doesn’t affect FR or involve suspect or quasi-suspect class. challenger bears burden and usually loses unless law is arbitrary or irrational

procedural due process

requires fair process/procedure when government deprives an individual of life, liberty, or property

questions to ask when PDP is at issue

1. was there a deprivation of life, liberty, or property? (government negligence isn’t sufficient, requires intentional or reckless action)

2. if so, what procedures are required?

PDP loss of Liberty

includes loss of significant freedom of action

PDP property

can include government benefits or public employment if there’s a legitimate entitlement, reasonable expectation, to the benefit

What is the balancing test for determining fair process

1. importance of individual right

2. value of specific procedural safeguard involved

3. governmental interest in fiscal and administrative efficiency

minimum is usually notice, opportunity to respond, and neutral decisionmaker

Takings

government takes private property for public use, must provide just compensation

was there a taking?

possessory taking, regulatory taking, public use

Possessory Taking

actual appropriation almost always a taking exception for emergencies

regulatory taking

a use restriction. denial of all economic value = taking, decrease in value = generally not a taking if some economically viable use remains, exactions (conditioning building permits on forced dedication) = taking unless government can show legitimate government interest plus benefit roughly proportionate to burden (compare adverse impact of development with owner’s loss)

what is taking public use

defined broadly, virtually any taking meets this requirement

just compensation

reasonable, fair market, value of property at time of taking

What is implicated by prohibitions against retroactive legislation

contracts clause, ex post facto laws, bill of attainder

contracts clause

limits ability of state or local law to retroactively impair existing contract rights. DOESN’T apply to federal government

private contracts

substantial impairment of existing contract rights is invalid UNLESS narrowly tailored to an important government interest (type of intermediate scrutiny)

public contracts

not allowed unless law is necessary to achieve a compelling government interest and no less burdensome alternative exists

prohibition on ex post facto laws

can’t retroactively make an act criminal and can’t increase punishment or reduce evidence needed to convict after an act has been committed

prohibition on bills of attainder

can’t use legislative acts to inflict punishment on specific people without a trial

Substantive due process

It is a prohibition against unreasonable laws. safeguards fundamental rights, personal liberties, and privacy. Requires laws to give fair notice of conduct that is forbidden or required. There are 2 DP clauses 5A and 14A

Test for substantive DP

depends on interest involved. If FR apply strict scrutiny, any other interest apply rational basis

Right to privacy

marriage, procreation, conception, childrearing, living with extended family, refusal of medical treatment. generally subject to strict scrutiny

Right to bear arms

regulations must be consistent with country’s historical tradition of firearm regulation. Merely positing that regulation promotes important interest isn’t sufficient. Gun permit laws, need clear criteria and can’t give discretion to official, can’t require applicant for concealed carry permit to show special safety concern

Right to interstate travel

right to relocate and be treated equally in new state. Durational residency requirements = strict scrutiny. No right to international travel

Right to vote

strict scrutiny applies to laws that deny some citizens right to vote, but general regulations need to be desirable on balance.

Right to vote general regulations

reasonable residency requirement allowed, one person, one vote. Usually, property ownership requirements are invalid unless special purpose election