Constitutional Law

11th

Article III of the Constitution

(The Judicial Vesting Clause)

• Grants Federal Courts the power to decide actual cases and controversies

• Congress can restructure lower Federal Courts.

Original Jurisdiction

• Case can go DIRECTLY to Supreme Court

• Congress CANNOT enlarge or restrict original jurisdiction

Applicability

• Ambassadors/public ministers/consuls

• State as party (exclusive jurisdiction over suits between states)

Appellate Jurisdiction

• Case is APPEALED up to Supreme Court.

• Come through appeal by right or appeal by writ of certiorari (a discretionary appeal that judges have to agree to hear)

• Congress MAY regulate (enlarge or restrict jx)

Congress & Supreme Court

• Congress CANNOT tell Supreme Court what to do.

• But Congress can change the size of the Supreme Court, change the qualifications to become a Supreme Court justice, and control the funding of the Supreme Court.

Congress & Lower Courts

Congress CAN establish lower courts & jurisdiction

Mootness

Issue has already been resolved

• There’s no more ongoing injury or there won’t be a case or controversy in front of the court.

Exceptions to Mootness #1 - Voluntary Cessation

If Defendant just stops doing the shit, but he could continue doing it at any time, it won’t be moot.

• Because the plaintiff is still in danger from the defendant CONTINUING it up again at any time.

Exceptions to Mootness #2 - Class action suits won’t be dismissed for mootness so long as one member of the class still has ongoing injury.

Exceptions to Mootness #3 - A wrong capable of repetition but evading review.

This exception only comes into play when:

1. The challenged action only lasts a short time, and it can’t be fully litigated prior to its logical end;

2. The complaining party will likely get hit with the same injury again.

E.g. - Running an illegal election advertisement talking shit; abortion issues

Exceptions to Mootness #4 - If there are still collateral consequences at play, then the case is not moot.

E.g., If you get convicted of a sex crime, but want to challenge your status as a sex offender…yea you’ve already been convicted but it’s not necessarily moot.

Ripeness

Case is NOT ready to be brought to court

Standing

Plaintiff must have a personal injury at stake.

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Plaintiff must have:

1. injury in fact - actual or imminent harm that is concrete and particularized,

2. causation - the injury is fairly traceable to the defendant’s challenged conduct,

3. redressability - a favorable judicial decision will likely remedy or prevent the alleged injury

You can assert third-party standing when…

1. Close relationship btwn Plaintiff and Injured Party, or

2. Injured party is unlikely to assert their own rights (parent or guardian suing on behalf of incapacitated minor), or

3. Assignee of a contract can sue even if the money will go to the assignor, or

4. Organizational Standing

Organizational Standing

1. Members would have standing to sue themselves,

2. Claims are directly aligned to the organization’s purpose,

3. Neither the claim nor relief requires the participation of individual members

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E.g., A Disability Rights Organization has a member who is severely mentally disabled and faces discrimination in the workforce. The member may not have the intellectual or financial ability to pursue the claim or understand their rights, but they could still bring the claim themselves. The claim itself from this member would directly align with the organization’s overall purpose, and the claim itself would not require the participation of the mentally disabled member to litigate.

Case or Controversy

Must be an actual dispute

Adequate and Independent State Grounds (AISG)

A case resolved on adequate & independent state grounds will NOT go to the Supreme Court.

• If a decision is independently supported by state law, there’s no need for Daddy Federal Gov to step in.

• Key words - “the State Supreme Court held that the Constitution of our grand state is clear on this issue…this violates our state law Constitution.”

AISG Situations

Situation #1 - If the highest state court decides on issue on BOTH independent state and federal grounds, and the Supreme Court’s reversal of the federal issue will not change the result in the case, it won’t be reviewed by SCOTUS.

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Situation #2 - The decision fully rests on independent state court grounds. No federal issues involved. The Supreme Court definitely can’t review this shit.

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Situation #3 - If it’s unclear whether it is based on federal or state law, the Supreme Court may review.

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Situation #4 - if the highest state court’s decision is based on state and federal issues which are INTERTWINED, the Supreme Court will REVERSE the state court and remand to the state court for further proceedings.

Political Questions/Justiciability

• A suit may be heard by the federal court if it is justiciable.

• Federal Courts will NOT hear cases regarding legislative or executive power

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Issues that are Justiciable (can be heard)

• Production of presidential documents (this has clear judicial standards)

• Arbitrary exclusion of a congressional delegate from Congress (has clear judicial standards)

• Court can rule on challenges to vote recounts.

• STATUTES - Supreme Court can rule on federal statutes.

Colorado River Abstention Doctrine

• Federal courts should not interfere in certain cases which involve state law issues.

  • E.g. - If someone files a federal AND state law challenge to the SAME exact thing, the federal court will abstent themselves from hearing it.

• This doctrine is about concurrent jurisdiction, and two cases going on at once. When both a federal court and a state court could hear the case simultaneously, the federal case is delayed or dismissed to allow the state’s to do their thing.

Pullman Abstention Doctrine

If there is a state law case which has an unresolved STATE law issue and a federal issue at the same time, BUT a resolution of the STATE LAW issue would eliminate the need for the federal court to decide the FEDERAL issue, federal courts should abstain from hearing the case and let state courts do their thing.

• This doctrine is about resolving unclear issues of state law first in a given case before getting to the federal issues. If the state law issues are resolved, we many not even need the federal analysis.

11th Amendment

Citizens cannot sue:

• Their own state in federal court,

• Another state in federal court,

• State officials in their official (not private) capacity in federal court.

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• Only applies to suits in Federal Court.

• Does not apply to city or town officials.

• States lose their sovereign immunity in bankruptcy proceedings, so they can be brought into federal court by state creditors.

EXCEPTIONS to 11th Amendment

(When can a citizen sue a State in Federal Court..)

1. State waives their right to be sued to virtue signal,

2. Congress abrogates because a state was fucking around with civil rights,

3. Federal government SUES the State in federal court - THIS IS ALLOWED

4. You can sue a state official for injunctive relief if they are acting OUTSIDE the scope of their authority by violating FEDERAL LAW or IN THEIR PERSONAL CAPACITY IF THEY HIT YOUR CAR MY GOATS.

Powers of the President

1. Controls the Executive Agencies

2. Has immunity from civil lawsuits from money damages while in office

3. Executive Privileges

4. The Power to Pardon

5. Has the power to ensure that the laws are “faithfully executed” (aka Take Care clause)

6. Commander in Chief

7. Treaty Power & Foreign Affairs Power

8. Executive Orders/Agreements

9. Appointment Power

10. Removal Power

President’s Powers #1 - Controls the Executive Agencies

• Controls the executive agencies.

• However, Congress can enact laws which limit the President’s ability to boss around the agencies.

President’s Powers #2 - President has immunity from civil lawsuits from money damages while in office

• President is not immune to his actions BEFORE his presidency, and can still be sued for those actions.

• NOT immune from criminal prosecution, but impeachment process comes first so that will bar any prosecution until after the President is removed from office.

President’s Powers #3 - Executive Privileges

The President’s conversations and documents exchanged between him and his high level advisors are privileged. Unless it’s a crazy ass crime, these papers can be subpoenaed.

President’s Powers #4 - The Power to Pardon

• Can pardon ppl who are convicted of FEDERAL crimes only!!!

• Can only pardon CRIMINAL crimes, not civil.

• Cannot pardon for impeachment

Tip - Congress CANNOT limit the President’s pardon power

President’s Powers #5 - President has the power to ensure that the laws are “faithfully executed” (aka Take Care clause)

Daddy President has to make sure his little agencies carry out the laws but the reality is resources are limited.

• President can decide in what way the laws are carried out.

• But, if Congress specifically appropriates money for a certain thing, the President cannot refuse to spend it because he has to make sure the laws are faithfully executed.

President’s Powers #6 - Commander in Chief

• The President can take some military actions without Congress.

  • When troops are moving abroad in foreign countries, President has a lot of agency to moved them around and shit.

• CANNOT declare war, but he can act quickly to repel a sudden attack.

• Has to give enemy combatants due process.

President’s Powers #7 - Treaty Power & Foreign Affairs Power

Treaty Power

A treaty is an international agreement between the United States and a foreign country that is NEGOTIATED by Daddy President with the advice and consent of the Senate.

• Treaties need to be RATIFIED by ⅔ approval vote of the Senate.

• Self-executing treaty - instantly becomes law, you don’t have to do any additional legal shit

• Non self-executing treaty - you have to do additional legal shit for it to become a law.

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Foreign Affairs

• President shares many foreign affairs powers with Congress. But he can so some things on his own:

  • Deploying troops in foreign countries;

  • Making executive agreements; and

  • Doing foreign negotiations.

• Daddy President represents us abroad because Congress takes like two million fucking years to do anything, and we want to speak quickly and with unified voice.

• Congress controls FOREIGN COMMERCE (anything to do with commerce, they run that shit)

• President has SOLE power to recognize foreign nations (can choose not to recognize them too), and Congress cannot override this shit.

President’s Powers #8 - Executive Orders/Agreements

• Executive orders usually deal with domestic policy

• Executive agreements deal with little agreements between the United States and Foreign nations. Have to be based on existing law.

President’s Powers #9 - Appointment Power

• PRESIDENT can appoint principal officers with the advice and consent of Senate.

  • CONGRESS cannot appoint inferior officers themselves. Rather, they give the appointment power to other people.

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Ex - Congress created a new executive agency in State A. Congress then appointed five members on the board.

• This is NOT ALLOWED because Congress does not appoint

President’s Powers #10 - Removal Power

Rule - Unless removal is prohibited by a certain statute, the President can fire whoever the fuck they want.

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• Congress can reserve to OTHER branches the power to remove inferior officers, but they cannot reserve that power for themselves.

• Congress can impose limits on what the President can remove an inferior officer for, but it has to be the type of job that we would not want the President fucking with.

  • Jobs Congress can put limits on removal: independent counsel investigating the President; inspector generals that investigate fraud; head of Securities and Exchange Commission.

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Ex: “Congress passed a law allowing the President to choose an employee from a list of 7 people that Congress pre-selected” or “Congress passed a law saying that Jimmy would automatically become approved even if the President doesn’t know Jimmy”

• NOT ALLOWED

How Congress Limits the Executive Branch:

1. impeachment

2. appropriations

3. investigations

Impeachment - the House “impeaches” by majority vote, and the Senate tries the case. To get convicted, we need a 2/3 vote.

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Appropriations - Congress controls the purse. If Congress says the President needs to spend money in a certain way, President must follow.

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Investigations - Congress can hold investigations to discover information needed to pass legislation, and expose corruption, or inadequacies in the executive branch.

How the President checks Congress

• Vetoes

If a President gets the bill, he has to approve or veto the WHOLE BILL. Just crossing out a single line is an unconstitutional line-item veto.

Non-Delegation Doctrine

Prohibits Congress from delegating its exclusive legislative powers

• Eg: making/repealing laws, declare war, or impeaching federal officers

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CAN delegate incidental powers (eg, rulemaking, carrying out legislation, enforcing regulations) if it provides an intelligible principle (ie, a clear statement defining):

• policy it seeks to advance,

• agency carrying out that policy,

• scope of agency’s authority.

The powers Congress CAN give away…

(Non-Delegation Doctrine)

Congress can be lazy fucks and give their rule-making authority to executive agencies, so long as they give them a “clear and intelligible principle” to work with (aka a clear statement describing what kind of power they have)

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It has to say:

1. What agency is getting the rule-making power,

2. The scope of the power,

3. The policy Congress seeks to advance by giving their power to the agency.

• Can give power to appoint special prosecutors to investigate the president

The powers Congress CANNOT give away…

(Non-Delegation Doctrine)

1. Making laws (this is their main fcking job),

2. Declaring war,

3. Impeaching ppl (they run that shit)

Joint Appointment Power

CONGRESS may appoint members when the agency has NO regulatory or rule making authority

Legislative Vetoes

We need Bicameralism and Presentment.

• We have to approve the bill in the House and Senate (bicameralism), THEN

• present it to the President.

Taxing & Spending Power

Congress can tax and spend for the general welfare

• Tax - Congress can tax to regulate or prohibit behavior so long as it raises revenue.

  • Congress cannot tax shit they can’t regulate directly.

Three types of taxes:

1. Direct Taxes

2. Indirect Taxes

3. Congress cannot tax exports (things leaving the U.S.)

Direct Taxes - taxes on individuals and corporations from income and profits that are paid DIRECTLY to the government.

• Only limitation is that they must be apportioned evenly among states based on population and how rich the state is.

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Indirect Taxes - these are little secret taxes on goods and services rather than on income and profits.

• Only limitation is that they must be applied uniformly in every state.

Commerce Clause

The Commerce Clause empowers Congress to regulate goods, services or people affecting foreign or interstate commerce.

• All about money moving across state lines.

• Congress has broad powers to regulate commerce which moves across state lines.

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Congress can regulate:

1. Channels of interstate commerce;

2. Instrumentalities;

3. Persons or things; and

4. Intrastate activities (economic or non-economic) that have, in the aggregate, a substantial impact on interstate commerce.

Non-economic Activity

(Congress cannot regulate)

If something is grown in a state which has NO secondary market and is not sold at all across state lines or within the state —> this activity is NOT controlled by Congress.

• Ex: Bringing a gun to school; gender based violent crimes

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E.g. - There’s a certain flower which only grew in State A which was used by a group of emo teens to get high. Not a single person in the U.S. sold this dandelion since it could be grown in 3 minutes and there were a trillion of them. The dandelion had no secondary market.

The Federal Government can give money to States with conditions.

The conditions on the funds must be clear (unambiguous), non-coercive (no gun to the head), and related to a federal interest.

Congress can regulate through spending conditions on states, but not tax penalties on states for things outside of their enumerated powers.

War Power

• Congress can declare war.

• Create the armed forces, and structure it, and supply it and forcibly enlist people through drafts.

• Can punish war crimes

The Federal Police can only regulate four things:

1. D.C.

2. Indian Reservations

3. Lands owned by Federal Government

4. Armed Forces (i.e. the Military)

There is no general federal police power; they cannot just roll up and regulate anything they want to at the state level.

Foreign Affairs

Congress has the Primary Authority

Aliens

Congress has the power over non-citizens

Coin Money

Congress has the power to coin money

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Congressional Powers List

Congress = House of Representatives + Senate

• Tax & spend

• Commerce clause

• Declare war

• Foreign affairs

• Aliens

• Coin money

• Federal land

Delegation of Powers

Congress CAN delegate powers

MUST include guidelines & limitations

Necessary & Proper Clause

• It cannot stand on its own, has to be combined with another power.

• Congress can use any means not prohibited by the Constitution to carry out their authority.

• Congress combines the Necessary and Proper Clause with the Commerce Power and this combination gives them UNLIMITED power.

• Usually incorrect answer choice.

Section 5 of the 14th Amendment

• Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

  • Remedy - must be congruent and proportional

• Section 5 lets Daddy Congress fix shit when states are fucking around with civil rights. It does not let them use it as a vehicle to add in a bunch of weird shit or freestyle create new laws to take over the states.

Difference between Section 5 of the 14th Amendment and Commerce Clause

• Commerce clause is focused on MONEY

• Section 5 is focused on CIVIL RIGHTS

Supremacy Clause

The supremacy clause renders a state law void and without effect when a federal law expressly or impliedly preempts it.

Federal ALWAYS wins

Restrictiveness of Law

State law can be MORE RESTRICTIVE than federal law

10th Amendment

• The federal government can regulate the states, but if the regulation prevents the states from carrying out their core functions → it violates the 10th amendment.

• States cannot be taxed on property or income derived from doing their basic life functions. (public park, public school)

• States can be sued by the Federal Gov or by other states without the state itself giving consent.

Commandeer Rule

Federal government can NOT REQUIRE a state to do anything

Dormant Commerce Clause

Congress has broad commerce power; where Congress has not acted, state and local laws may regulate locals aspects of interstate commerce if the regulation is not discriminatory or unduly burdensome.

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TEST - a state/local law regulating interstate commerce is invalid if it:

a) discriminates against out-of-state competition,

b) unduly burdens interstate commerce, or

c) regulates wholly out-of-state activity

Discriminatory on Face - Dormant Commerce Clause

Strict scrutiny applies:

• Government must prove that the law serves a legitimate purpose, AND

• The purpose cannot be adequately served nondiscriminatory alternative means.

Almost always shot down

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Example:

• All puppies in California must ONLY have their hair cut in California puppy grooming places.

• If a town says nobody can sell carrots at their farmers market which are grown outside of the town. (this implies nobody can sell their fcking carrots outside of the state)

Discriminatory Effect - Dormant Commerce Clause

Intermediate scrutiny applies:

• Weight the burdens on interstate commerce vs. the local benefits

• Burden on commerce should NOT be excessive

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Example

• Illinois state said that all trucks driving on their highways had to have mud flaps on their trucks. (BAD)

  • Truck drivers had to apply for a permit to drive on state’s highway, and EVERYONE got accepted immediately. (GOOD)

• All apples sold in Illinois must have a special label on them.

• All trucks driving through Illinois must have special tires.

Market Participation Exception

(Exceptions to Dormant Commerce Clause)

• When the state acts as a REGULATOR and are spending their own money to buy goods and services rather than fucking with random private companies, they can discriminate.

• CANNOT act as a referee

  • selling their OWN state timber is OK; but requiring in-state trucking services and processed by in-state timber facilities and keeping downstream in-state only NOT OK

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Ex:

• State can have construction of all governmental buildings done by IN-STATE construction companies (can’t do this with private buildings though), or

• If state runs a windmill plant, they can charge LESS for windmill power to in-state customers, and

• They can even give in-state students lower tuition.

• “STATE-OWNED Power plants now want to buy electricity from STATE-OWNED companies..”

Full Faith & Credit

Judgment in one state must be given full faith & credit in another state

Judicial Immunity

Judges have absolute immunity for any decision made in their official capacity as a judge.

Legislative Immunity - Speech and Debate Clause

People in Congress and the Senate AND their little assistants are IMMUNIZED from criminal and civil liability for statements made ON THE HOUSE/SENATE FLOOR while they are engaged in LEGISLATIVE ACTS (voting on the floor or making speeches on the floor, or conducting legislative hearings, etc.)

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Exceptions

• It does NOT protect against criminal acts OUTSIDE the scope of legislative duties (such as the Senator accepting a bribe)

• It does NOT protect against press releases and saying things to the public OUTSIDE OF THE FLOOR of Congress/the Senate

• When the President and Congress agree → The President can do whatever he’s trying to do

• When the President is motivated and ready to go, and Congress is silent → Prez probably can do it, but we’re in a “twilight zone”

• When the President wants to do something and Congress disagrees → President’s power is at its LOWEST EBB.

Youngstown v. Tom Sawyer

Federal Immunity

• States CANNOT sue federal government

• States CANNOT tax federal government (aka agencies and instrumentalities so closely related to fed gov)

  • CANNOT tax federal property and lands.

• Individual CANNOT sue, unless consent

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• State CAN tax individuals, private firms, independent contractor doing business w/ fed gov.

  • CAN tax people who LEASE on federally owned property.

  • CAN tax federal employees and federal contractors on their salaries. (lol income tax); so long as it is not discriminatory or aimed at only fed employees

State Immunity

Federal government & states CAN sue a state

Federal government may NOT tax a government activity

Federal government may tax a proprietary business

Executive Immunity

• The president has absolute civil liability immunity when conducting official acts.

• But no immunity for acts committed in the President’s private capacity (like hitting someone in a car) or acts before he became President.

CONGRESS CANNOT COMMANDEER THE STATE LEGISLATURE.

(This is always on the exam)

10th Amendment

• Ex: “Congress enacted a law which forced the state legislature to enact a law…”

• DOUBLE ENACT = BAD

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• Congress cannot tell a state how to regulate.

• You cannot force a state to adopt a law.

• You cannot force a state agency to adopt a regulation.

• Just. Say. No. To double enact.

Unlawful Commandeering under the 10th Amendment

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Examples:

• Congress cannot force states to buy equipment for federal post offices.

• Congress cannot FORCE states to enact legislation criminalizing firearms possession in certain areas.

• Congress cannot commandeer or hijack state officials and turn them into federal government worker slaves.

It is NOT commandeering to induce state compliance to your federal plan by attaching STRINGS onto the money you give the states.

• The Fed Gov can do this so long as it is not COERCIVE.

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Congress can put CONDITIONS on the money they give to states so long as these conditions are:

• Clearly stated;

• Not coercive;

• Related to the purpose of the program (ex: like demanding states enact a seatbelt law or you withhold 5% of their highway funds).

Law of General Applicability

The Federal Government ENACTS a law which applies to everyone, both public and private, and it kind of looks like they’re commandeering but you take a good look at it and you’re like “this shit applies to everyone”

• E.g.: Fair Labor Standards Act; Family Medical Leave Act.

Preemption

Under the supremacy clause, Federal Law preempts state law.

• There is express and implied preemption

Express Preemption

The Federal government literally and explicitly says “do not make any fucking laws in this area”

Implied Preemption

If the law doesn’t actually SAY outright the states are preempted, the court looks at a few things to see if Congress MEANT for states to be preempted.

Can happen in 3 ways:

1. Impossibility Preemption

2. Obstacle Preemption

3. Field Preemption

Impossibility Preemption

(mutual exclusivity preemption)

You cannot comply with BOTH the Federal and State law at the SAME DAMN TIME.

Obstacle Preemption

If state law impedes on the achievement of a federal objective.

Field Preemption

There are certain sectors where Congress has legislated so extensively that they just absolutely run shit.

• Ex: immigration, workplace safety (OSHA), water quality (Clean Air and Water Act), Airline regulations, Patent regulations, Bankruptcy regulations.

State Action

There must be state/government action to violate the constitution.

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Exceptions

• The 13th Amendment/Slavery/Racial Discrimination → Congress can legislate using the commerce clause to stop your racist ass.

• Public Function → Where a private company or person is role-playing as the government

  • Ex: if Amazon just took over a town in Arkansas and had their own roads and police force and elections, they would be treated as a state actor).

• Entanglement → A private actor can be considered a state actor if the state is pressuring them to do shit.

  • You have to argue whether there was truly downward pressure to make the government so hopelessly intertwined that the private party was acting as a state actor.

Due Process Clause

The Due Process Clause ensures fairness in government actions, preventing arbitrary deprivation of life, liberty or property.

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• The focus is on the right that is being burdened.

• The Due Process Clause is found in the 5th Amendment and applies to the states through the 14th Amendment

• There are two parts - procedural due process and substantive due process.

Procedural Due Process

The government may not intentionally deprive someone of life, liberty or property without notice and an opportunity to be heard.

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Notes:

• Life (death penalty, life-sustaining medical treatment, asylum cases where you might be killed if you get sent back to your country)

• Liberty (civil commitment for both adults and children, extreme injury to reputation that results in loss of employment opportunities); or

• Property (real property, personal property, public education, TENURED public employment, and welfare benefits)

MBE tests on entitlements

Entitlements

You have a reasonable expectation you are going to keep getting some shit you’ve already been getting (welfare benefits, disability benefits, tenured employment).

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Three-part Balancing Test

1. Can additional procedures discover more facts?

2. Government interest in efficiency

3. Importance of interest to individual. More important = more procedure

• You actually have to get the entitlement before you demand procedural due process on it.

Substantive Due Process

Whether the government has adequate reason for taking away your most important rights (fundamental rights).

• Fundamental rights → strict scrutiny

• All other rights → rational basis

Substantive Due Process - Strict scrutiny for fundamental rights

• The burden is on the government to show the law is necessary for a compelling interest.

Fundamental Rights (First VIP)

• First Amendment freedoms

• Voting

• Interstate travel

• Privacy

  • marriage/family

  • parental rights (eg: parents’ right to control education and upbringing)

  • sexual acts

  • contraceptives

STRICT SCRUTINY

Substantive Due Process - Rational basis for everything else

• The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.

• Right to education

• Welfare benefits, and

• All economic regulations

RATIONAL BASIS

Equal Protection Clause

The Equal Protection Clause prohibits discrimination based on irrelevant characteristics.

• The focus is on the class that is being discriminated against.

• The EPC applies to the states through the 14th Amendment and the federal government through the Due Process Clause of the 5th Amendment.

We need BOTH a discriminatory intent and discriminatory impact.

Equal Protection - Strict Scrutiny

The burden is on the Government to show the law is necessary for a compelling government interest

• Need the least restrictive alternative, meaning the law has to be a perfect fit.

• Gov almost always loses.

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mnemonic - FAR

• Fundamental Rights

• Alienage (if a state is discriminating, unless it’s the public function doctrine (which allows states to exclude noncitizens from certain government jobs (ex: public school teachers and police officers) then rational basis)

• Race

Equal Protection - Intermediate Scrutiny

The burden is on the Government to show the law is substantially related to an important government interest.

mnemonic - GI

• Gender

• Illegitimacy

Equal Protection - Rational Basis

The burden is on the Plaintiff to show that the law is NOT rationally related to a legitimate government interest.

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Applies to everything else:

• Age,

• Disabled,

• Poor,

• Congressional regulation of alienage,

• Economic regulations (ex: licensing requirements, minimum and max prices on goods or wages, consumer protection laws, employment regulations)

Privileges AND Immunities Clause of Article IV

State passes a law that treats OUT-OF-STATERS differently when it comes to (1) work opportunities (ability to earn a livelihood), or (2) fundamental rights.

• mnemonic -WORK 4 me

• Corporations and aliens CANNOT bring a claim under the Privileges & Immunities Clause of Article IV.

Examples of the Privileges and Immunities Clause of Article IV

Violation

• Kevin wants to be a barber in New York, he is from New Jersey. He has to pay $9,000 to get a barber’s license, while Goat only has to pay $600 as a resident of New York.

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Not a Violation

• Rainbow Brown wanted to get a Fly FISHING license in Illinois to go fly fishing, they charge him $1,000. When Goat got his as an in-state resident, they only charged him $50.

  • Not a violation because fly fishing is not related to the ability to earn a LIVELIHOOD.

• You can tax out-of-staters for HOBBIES !!!

Privileges OR Immunities Clause of the 14th Amendment

Bars states from interfering with the rights of national citizenship.

• interestate travel,

• assemble peacefully,

• vote for national offices,

• enter public lands,

• petition Congress for redress of grievances,

• protection when in custody of U.S Marshal

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• Ex: if you’re from State A and you want to move to State B, state B can’t put in a bunch of crazy regulations which make it harder for you to get State B benefits.

  • A state cannot give REDUCED state benefits to citizens that have been in a state for two months vs. citizens that have been there for over a year.

• Only applies to citizens (not noncitizens or corporations)

Exceptions to Privileges or Immunities Clause of the 14th

Some things do not involve the “necessities” of life, like healthcare and welfare benefits, and these are exempt from the rule.

• (1) In-state tuition, and

  • States can impose reasonable residency requirements on things like obtaining the lower cost of in-state tuition (in most instances it is a year).

• (2) Obtaining a divorce

  • in most cases one spouse must have lived in a state for at least a year to obtain a divorce in that new state.

• Anything over 1 year is too long for ANY durational residency requirement.

Takings

(5th Amendment)

• The government has power to take private property for public use in exchange for reasonable compensation.

  • “for public use” is very broad; CAN BE FOR ANYTHING.

  • “just compensation” means you will be entitled to the fair market value at the time of the taking.

• You can bring an action claiming a taking even if the regulations existed at the time you brought the property.

• Must be permanent taking.

Ex: Grandma was living in her house knitting. The government took her whole house and condemned it for public use. They blew it up and gave it to Amazon to build a warehouse.

• If the government reasons that an Amazon warehouse is beneficial to the community, that will be considered “for public use.”

• EVEN if the property is not used by all the general public.

Possessory Taking

If the government straight up takes your property from you.

• Even if it’s small, it’s still a taking.

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Example:

• The government passed wires through someone’s private property = taking

• A guy’s land was near a national park and the government allowed an easement for tourists to walk across his land to get to the park = taking

Regulatory Taking

The government can use their police power to regulate land with things like zoning for the health, safety and welfare of the community.

• It will be a regulatory taking if they go too far with their zoning plan and destroy all the value in your property. !!!!!

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Two ways to prove:

1. If the regulatory taking leaves no reasonable economic use of your property, or

2. if the taking unreasonably interferes with DISTINCT INVESTMENT BACKED EXPECTATIONS you have in the property.

Regulatory Taking Situation #1 → If the regulatory taking leaves no reasonable economic use of your property

The zoning plan destroyed all economic use of the property (this is not just a DECREASE in property value, this is a full blown ECONOMIC WIPEOUT of your property).

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Ex:

• A guy buys a beachfront property for $1.2 million, then the government two days later was like “Yea, you can’t build on this beach.”

• A guy had a radioactive waste facility, then the Gov told him it got zoned so that he couldn’t have the radioactive waste facility, he could only have apartments. But then there was a separate law that said you couldn’t build apartments on an old radioactive waste site.