SBP Con Law

State sovereign immunity

11th amendment prohibits a party from suing a state (or state agency) in federal unless:
1) State explicitly consents to waive protection
2) Lawsuit pertains to federal laws adopted under Section V of 14A
3) Lawsuit seeks only injunctive relief against a state official or;
4) Lawsuit seeks money damages from a state official

11th amendment exemptions

1) Local governments
2) Federal lawsuit by a state against another state
3) Lawsuit by the federal government against a state

Justicability

Art. III of the Constitution limits federal courts to hearing actual cases and controversies

Standing

P has standing if:
1) P personally suffered an injury in fact (must be concrete and particularized)
2) There is causation; and
3) The injury is redressable by a court order

Standing for injunctive/declaratory relief

P must show a concrete, imminent threat of future injury

Third party standing

Generally not permitted unless:
1) A close relationship exists
2) It's difficult or unlikely for the third-party to assert their rights on their own; OR
3) The third-party is an organization

Organizational standing

Organizations may sue on behalf of their members if:
1) The suit is related to an issue germane to the organization's purpose
2) Members would have standing to sue
3) Members' participation is not necessary

Taxpayer standing

P may bring a lawsuit regarding specific amounts owed under their tax bill. However, P does not have standing solely for being a tax payer.

Rule on advisory opinions

Courts cannot give advisory opinions or address hypothetical disputes under the "cases and controversies" requirements

Ripeness

Whether the case is ready to be litigated. A case is rape when actual harm or an immediate threat of harm exists.

Mootness

When a dispute has ended or was resolved before review:

EXCEPTIONS: 1) Case is capable of being repeated but evades review
2) Voluntary cessation but may resume at any time
3) Class actions where at least one member has an ongoing injury

Commerce Clause

Under the Commerce Clause, Congress can regulate:
1) Channels of commerce
2) Instrumentalities of commerce
3) Economic/commercial activity that has a substantial effect on interstate commerce

Federal regulation regarding intrastate commerce

Will be upheld when there is
1) a rational basis
2) to conclude that the cumulative impact (aggregation)
3) has a substantial effect on interstate commerce

Aggregation cannot be used when the activity is not commercial/economic in nature

13th Amendment

Abolished slavery but grants Congress the power to eliminate the badges and incidents of slavery

15th Amendment

Citizens cannot be denied the right to vote because of race, color , or previous condition of servitude

Taxing Power

Congress has the power to lay and collect taxes, duties, imposts, and excises. Duties, imposts, and excises must be geographically uniform through the United States.

Spending Power

Congress has the power to spend for the common defense and general welfare

Conditional receipt of funds

Congress may attach restrictions or conditions on states receiving federal funds, but must satisfy the following:
1) Spending must be for the general welfare
2) Condition must be imposed unambiguously
3) Condition must be related to the federal interest in national projects or programs
4) Condition cannot induce unconstitutional activity
4) Condition cannot be so coercive as to turn pressure into compulsion

Domestic powers

President has the power to:
1) Execute the law
2) Appoint ambassadors, consuls, federal judgements, and officers (with advice and consent of the Senate)
3) Appoint inferior officers (when such power is given by Congress)
4) Remove cabinet level appointees (without cause)
5) Remove independent regulatory agency appointees
6) Pardon federal crimes; and
7) Act as Commander-in-Chief of the military (control troops)

Treaty and Foreign Affairs Powers

President shares treaty powers with Congress. Teaties may be negotiated by the President, but must be ratified by the Senate.

However, the President has the power to enter into Executive Agreements without Senate approval.

Delegation of Congressional powers

Congress may delegate legislative powers, so long as:
1) The powers are delegable under the Constitution; AND
2) Congress provides reasonably intelligible standards to guide the delegation

Non-delegation doctrine

Congress CANNOT delegate powers it does not have

State Immunity from Federal Law (10th Amendment)

All powers not granted to the federal government are reserved to the States, unless prohibited by the Constitution

Congress cannot compel a state government to implement legislation. However, Congress may induce state government action by attaching restrictions and conditions on fedearl funding pursuant to its spending power

Dormant commerce clause

A state MAY regulate commerce so long as Congress has NOT enacted laws on the subject matter. If such laws are enaccted, then any state/local law would pre-empted by federal law.

Discrimination against out-of-state commerce

States cannot pass laws that discriminate against out-of-state commerce or place an undue burden on interstate commerce

Discriminatory regulations

Law that are facially dscriminatory or have a discriminatory impact are unconstitutional unless:
1) the burden is narrowly tailored to achieve a legitimate, non-protectionist state objective; or
2) the state is a market participant rather than a regulatory of economic activity

Unduly burdensome regulations

Laws that are not discriminatory, but place an undue burden on interstate commerce are unconstitutional when:
1) the burden on interstate commerce
2) is clearly excessive to the putative benefits the state government

Supremacy Clause and Preemption

Under the Supremacy Clause, a validly enacted federal law will always preempt conflicting state law

Express preemption

Occurs when the federl law specifically states it is exclusive

Implied preemption

Occurs when:
1) A direct conflict with state law
2) State law substantially interferes with the objective of the federal law

Incorporation doctrine

Most amendments are applicable to the states by incorporation through the 14th Amendment Due Process clause

State action

P must show a constitutional violation is attributable to government action, which applies to all levels of local, state, and federal government

Private actor as a state actor

Courts will find government action of a private actor when:
1) It is a traditional public function (powers traditionally and exclusively reserved to the gov't); OR
2) Significant government involvement exists to authorize, encourage, or facilitate private unconstitutional conduct

Due Process Clause

No person shall be denied life, liberty, or property without due process of law.

Applicable to the states through the 14th Amendment and through the federal government through the 5th Amendment

Substantive Due Process

A principal allowing courts to protect certain fundamental rights from governmental interference

Fundamental rights test

When regulating fundamental rights, law must satisfy strict sccrutiny.

Government must show that the law is necessary/narrowly tailored to serve a compelling government interest

Examples of fundamental rights

1) Right to vote
2) Interstate travel
3) Privacy (marriage, procreation, use of contraceptives, raising kids, living with family members, keeping custody of kids)

Non-fundamental rights test

When regulating activities that do not constitute a fundamental right, it must meet the rational basis test.

P must show that the law is not rationally related to a legitimate government interest.

Procedural due process

Certain procedures are required when the government deprives a person of life, liberty, or property. Most important procedures are notice and a hearing.

Matthews v. Eldridge factors

To determine the procedure required, the court balances the:
1) Importance of the private interests
2) Risk of error under current procedures and the value of additional procedures; and
3) Importance of state interest and the burden that arises from additional safeguards

Equal Protection Analysis

Prohibits the government from denying citizens equal protection of the laws.

Discriminatory classification

Exists when:
1) A law is discriminatory on its face
2) A law is facially neutral, but is applied in a discriminatory manner; OR
3) A discriminatory motive exists

Standard of review for suspect classes

Strict scrutiny. Government must show the classification is necessary to serve a compelling government interest.

Suspect class includes race/nationality, alienage under state law, or infringement on a fundamental right

Standard of review for quasi-suspect classes

Intermediate scrutiny. Government must show that the classification is substantially related to an important government interest.

Quasi-suspect class includes gender/sex, legitimacy, and most likely sexual orientation/gender identity

Standard of review for non-suspect classes

Rational basis. Plaintiff must show that the classification is not rationally related to legitimate governmental interest.

Takings Clause

Government may take private property for public use if it provides just compensation

Public use

Rationally related to a conceivable public purpose

Just compensation

Fair market value at the time of the taking

Possessory (per se) taking

Government physically occupies the property, even if it's a very small portion.

Regulatory taking

Three categories
1) Depriving owner of all economically viable use
2) Penn Central taking
3) Conditions on approval of permit

Penn Central factors

Court will balance these factors to determine if there has been a taking:
1) Economic impact of regulation on claimant
2) Extent of interference with investment backed expectatios
3) Character of regulation

Conditions on approval of permit

Does not constitute a taking if:
1) There is an essential nexus between the state interest and permit condition; and
2) Government makes an individualized determination that the condition si roughly proportional to advancing the state interest

Privileges and immunities clause

Under the PI Clause, States cannot intentionally discriminate against non-residents concerning:
1) Civil liberties
2) Important economic activities

Does NOT protect aliens or corporations

Privileges and Immunities test

Regulations will be upheld when:
1) A substantial reason exists; AND
2) The discriminatory law has a substantial relationship to that reason

Establishment Clause

Prohibits the government from establishing a religion or endorsing/supporting religion

Review for laws that discriminate against a religion

Goverment must show that:
1) The law is narrowly tailored
2) To achieve a compelling government interest; and
3) The lease restrictive means was used

Review for laws that do not discriminate against religion

Will be upheld if:
1) Has a secular purpose
2) Primary effect does not advance or inhibit religion; and
3) Does not excessively tangle the government with religion

Free exercise clause

Prohibits government from interfering with the exercise of religion

Review for laws designed to interfere with religion

Government must show that:
1) The law is narrowly tailored
2) To achieve a compelling government interest; and
3) The least restrictive means was used

Laws of general applicability

Generally considered constitutional and do not offend the Free Exercise Clause, unless they are clearly targeted to inhibit a specific religious practice

Freedom of Speech under 1A

1A protects the right to freedom of speech and expressive activities that constitute speech

Content-based restrictions on speech

Government regulations regarding the content of speech (subject matter or viewpoint) are subject to strict scrutiny

Government must show:
1) the regulation is narrowly tailored
2) to achieve a compelling government interest, and
3) the least restrictive means was used

Content-neutral restrictions on speech

Government amy regulate the time, place, and manner of speech in a content-neutral way if it satisifies intermediate scrutiny.

The government must show that:
1) The regulation is narrowly tailored
2) To achieve a significant government interest; and
3) It leaves open alternative channels for communiciation

Public forum

Place traditionally available for speech (i.e. parks, streets, public sidewalks)

Content-based restrictions must satisfy strict scrutiny. Content neutral restriction may regulate, time, place, and manner if it satisfies intermediate scrutiny

Designated forum

A place not traditionally made available to the public for speech, but the gov't chose to make it available (i.e. school makes a classroom open for club meetings)

Limited forum

Non-public forums that were specifically designated by the government as open to certain groups or topics (i.e. municipal meeting rooms). Treated the same as a non-public forum.

Non-public forum

Public places traditionally limited for speech (i.e. military bases, schools, jails, airports)

Government regulate speech:
1) Reasonable, AND
2) Viewpoint neutral

Private property

No right to access another's private property for speech

Fighting words

Not protected. These are words that which by their very utterance:
1) Inflict injury; or
2) Tend to incite an immediate breach of the peace

Incitement of imminent lawless

Not protected. May be outlawed if the speech:
1) Advocates for the use of force or illegality
2) Directed to inciting/producing imminent lawless action (intent); and
3) Likely to incite/produce such action (there is a clear and present danger that a listener will act)

Obscenity

Not protected. Material is obscene when it:
1) Appeals to the prurient interest of an average person under today's community standards
2) Is patently offensive; and
3) Lacks any serious artistic, literary, or scientific value

Mere private possession of obscene material by an adult inside the home cannot be made criminal. Exception for CP.

Commercial speech

Given less protection. Government may regulate truthful, non-misleading comemrcial speech if they regulation:
1) Directly advances
2) A substantial government interest; and
3) is no more extensive than necessary (reasonably tailored to serve that interest)

False/misleading commercial speech

Not protected

Public school students

Students do NOT lose their 1A free speech rights at school, but schools are given great latitude to regulate speech. A school may regulate speech if it shows that the conduct regulated would materially and substantially interfere with the operation of the school

Government employees

Two step test to determine if their speech is protected
Step 1: Did the employee speak as citizen on a matter of public concern? If no, speech is not protected. If yes, go to step 2.
Step 2: Did the government entity have an adequate justification for treating the employee differently from any other member of the general public based on the government's interests as an employer? The court must balance the employee's rights vs. the government's interests.

If a government employee speaks pursuant to their official duties, then the speech is not protected.

Expressive conduct/symbolic speech

The expression of ideas through non-verbal actions. Treated the same as verbal speech.

Prior restraint

Occurs when the government attempts to prohibit speech before it happens through a court order or licensing requirement. Generally disfavored and unconstitutional, exception in very limited circumstances, such as where national security is at stake. Court orders preventing speech must satisfy strict scrutiny.

Procedural safeguards for licensing

Are permitted if:
1) Government has an important reason
2) Specific, articulated standards to remove discretion; and
3) Procedural safeguards are in place, including a prompt final judicial decision when a license is denied

Vague and overbroad laws

Unconstitutional. Unduly vague laws do not put the public on reasonable notice as to what is prohibited and overbroad laws regulate more speech than is constitutionally permitted.

Defamation and actual malice standard

The press is afforded heightened protection under the 1st Amendment for Defamation lawsuits depending on the person being spoken about

Elements of defamation

P must prove:
1) A false and defamatory statement which tends to harm the reputation of another
2) Of and concerning the P made by D
3) Publication by D to a third-party; AND
4) Dmages

Public official or public figure standard for defamation

P must prove actual malice to be successful, meaning D spoke with either:
1) Recklessness; OR
2) Knowledge of its falsity

Proof of negligence is insufficient

Private citizen speaking on a matter of public concern

To be successful, P must also prove that the speaker was negligent

Disclosure of private facts and generally applicable laws

1A protects the press from liability when:
1) Publishing truthful private facts
2) Regarding a matter of public concern
3) Where info was legally obtained by the publisher; AND
4) There is no knowledge that the info was obtained illegally (if illegally obtained info was published)

1A does not protect the press from liability for violating generally applicable laws.

Freedom of association

Fundamental right under 1A. The government may only regulate the right to freely associate in a group if it satisfies strict scrutiny.

When the government may punish a person's membership in a group

1) Group is actively engaged in illegal activity or incites imminent lawless action
2) Person has knowledge of the group's illegal activities; and
3) Person has the specific intent of furthering those activities