Constitutional Law

Elements of justiciability

Standing, ripeness, mootness, political question doctrine

Standing

Plaintiff must have a stake in the outcome. Is the Plaintiff the proper party? Show: A concrete and particularized injury that is actual or imminent (not conjectural or hypothetical; for injunctive/declaratory relief, the injury must involve a substantial likelihood of future harm, not just past injury; AND a showing the defendant caused the issue and a ruling would fix the issue

Exceptions to third-party standing

Close relationship between the Plaintiff and 3rd party;

The injured 3rd party is unlikely to assert their own rights;

Organizations suing on behalf of members (if all members have standing and it’s germane to the organization’s purpose)

Ripeness

Whether the case is brought too early. Consider: Whether the case is too speculative or depends on future events; and wether court review would cause significant hardship on the plaintiff

Mootness

Whether the case has been filed too late. There must be a live controversy at every stage of the litigation. If events after filing have been resolved the dispute or the plaintiff no longer suffers an actual injury

Exceptions to mootness

Capable of repetition but evading review; voluntary cessation but free to start; class actions (so long as 1 member of the class has an ongoing injury)

Political Question Doctrine

Involving an issue the Constitution commits to another branch of government to figure out.

Four kinds of non-justiciable, political questions

Violations of the republican form of government, challenges of Presidential conduct relating to foreign policy, challenges of the impeachment and removal process, challenges to partisan gerrymandering

When a State can be a named Defendant

Explicit consent/waiver; pursuant to statutes adopted by Congress; Fed government can sue state government; Bankruptcy proceedings; State officials can be sued even when the state itself can’t be sued (injunction)

Abstention

The federal court has jurisdiction but declines it anyway

Necessary and Proper Clause

Congress can adopt any means (not prohibited by the Constitution) to carry out its authority

Taxing and Spending Power

Any tax to raise revenue and any spending for the general welfare (cannot exceed their already-given powers, no new statutes)

Commerce Clause

Congress can regulate commerce among nations, states, and tribes regulating: Channels, instrumentalities, and the substantial effect (cumulative) of local economic activities

Anti-Commandeering Act

Congress can’t compel state legislative or regulatory activity

Exception to the anti-commandeering act

Congress can put strings n federal funding. The conditions must be: Expressly stated, related to the rpupose of the program, not unduly coercive

Executive agreements

Agreements between the US President and foreign leaders. Same power as a treaty, but doesn’t require Senate approval

The recognition power

Only the President can recognize the capital of a foreign country

Executive Privilege

Authority to keep secret conversations or memos from advisors

Exceptions to executive privilege

When there’s a need for the information (like evidence for a criminal trial)

Pardon power

The President can pardon anyone convicted of federal crimes (not state crimes or civil liability)

Preemption

If there’s a conflict between state and federal law, federal law wins

Express preemption

A federal statute saying the law is exclusive in the field

Implied preemption

When federal law overrides or displaces state law, even without express language, based on inference from the structure or purpose of the federal law

Field preemption

If it’s Congress’s intent to occupy a whole field, state and local laws are preempted (even if not expressly stated)

Dormant commerce clause

A state/local law is unconstitutional if it places an undue burden on interstate commerce

Privileges and immunities clause

Prevents a state from discriminating against out-of-state citizens with respect to fundamental rights related to economic activity and livelihood

Privileges or Immunities

Prohibits durational residency requirements (the rights or newly arrived citizens to enjoy the same rights as other citizens)

When Privilege and Immunity can be violated

When necessary to achieve a compelling government purpose

State Action Doctrine

The US Constitution applies only to actions taken by government entities or officials, not to conduct by private individuals or organizations

Public function

A private entity doing something that traditionally was done by the government and is therefore bound by the Constitution

Rational basis

Laws are upheld if rationally related to a legitimate government purpose. Any conceivable purpose. The challenger has the burden of proof.

Intermediate scrutiny

Laws are upheld if they’re substantially related to an important government purpose. Doesn’t have to be the least restrictive means. The government has the burden. Courts look at the government’s actual purpose and whether it’s important

Strict scrutiny

Laws are upheld if necessary to achieve a compelling government purpose. The purpose must be crucial, vital, compelling, and the least restrictive means. The government has the burden

Procedural due process

Procedures the government must follow when taking away life, liberty, or property

Substantive Due Process

Does the government have an adequate reason for taking away life, liberty, or property?

Equal protection

Whether the government has an adequate reason for differences in its treatment of people

Two questions for determining procedural due process

1) Has there been a deprivation of life, liberty, or property? 2) If yes, what process is next? (the importance of the interest of the individual, the ability of additional procedures to increase the accuracy of the fact finding, and the government’s interest in efficiency

Deprivation of liberty

A loss of a significant, legally protected freedom

Deprivation of property

Entitlement (reasonable expectation of continued receipt) is not fulfilled

5th’s Taking Clause

The government can take private property for public use if it provides just compensation

Analysis for a 5th’s Taking Clause issue

1) Is there a taking? 2) If yes, is it for public yes? 3) If yes, was just compensation paid?

Possessory Taking

Confiscation or occupation (no matter how small)

Regulatory taking

Government regulation that leaves no reasonable, economically viable use to the property

Contracts Clause

State/local laws can’t impair already existing contracts (only applies to existing contracts and doesn’t apply to the federal government). Interference must meet strict scrutiny

Ex Post Facto Clause

No punishment for “crimes” that were done legally at the time (only applies to criminal law, not civil). Retroactive civil liability must meet rational basis

Bill of Attainder

No laws that direct for the punishment of a person without a trial

Right to privacy

A fundamental liberty requiring strict scrutiny. Concerns autonomy: Marriage, protection, custody of children, to keep the family together, to control the upbringing of children, and to purchase and use contraceptives

2nd’s right to bear arms

Any regulations on guns can only be allowed if it’s historically permitted

Right to travel

A fundamental right to travel between states. Any regulation must meet strict scrutiny

The right to vote

A fundamental/EPC right. Any law must meet strict scrutiny. One person, one vote must always be maintained

Equal protection

Drawing distinctions among people

3-Step equal protection clause analysis

1) What is the classification? 2) What is the level of scrutiny to be used? 3) Does the government’s action meet the level of scrutiny?

Sources of equal protection

14th Amendment for state/local governments. 5th amendment for the federal government

Equal protection classifications that require strict scrutiny

Race, national origin, alienage (when done by states not related to a political function)

Equal protection classifications that require intermediate scrutiny

Sex and non-marital children

Equal protection classifications that require rational basis

Age, disability, wealth, sexual orientation, economic status, and national origin (for federal government)

Discrimination based on race and national origin

Strict scrutiny (even if it’s benefiting minorities). Proof of discrimination is based on what the law says. A facially neutral law requires showing both discriminatory impact and intent

Discrimination based on sex classifications

Intermediate scrutiny. Requires proof of discrimination based on what the law says. A facially neutral law requires showing both discriminatory intent and impact

Classifications based on alienage status

State/local laws must meet strict scrutiny. The federal government must meet rational basis. The president has broad authority to decide who to admit into the US

Discrimination against non-marital children

Intermediate scrutiny. But if all marital children get a benefit no non-marital children gets, it always fails. If only some non-marital children don’t get it, intermediate scrutiny applies

Discrimination based on age gets what level of scrutiny?

Rational basis

Discrimination based on disability gets what level of scrutiny?

Rational basis

Discrimination based on wealth gets what level of scrutiny?

Rational basis

Discrimination based on sexual orientation gets what level of scrutiny?

Rational basis

Free speech regulations get what level of scrutiny?

If it’s content-based (subject matter or viewpoint restriction), strict scrutiny. If it’s content-neutral, intermediate scrutiny

Content-based speech restrictions gets what level of scrutiny?

Strict scrutiny

Content-neutral speech regulations get what level of scrutiny?

Intermediate scrutiny

Prior restraints

A government action that prevents speech or expression before it occurs. Subject to strict scrutiny

Licensing and permit requirements

Can be required if: There’s important reasoning for licensing, there’s clear criteria, and there’s procedural safeguard

When a law is unconstitutionally vague

If a reasonable person cannot tell what speech is prohibited or allowed. Vague laws violate due process

When a law is unconstitutionally overbreadth

If the law regulates substantially more speech than the Constitution allows

Fighting speech

Not constitutionally protected, but often, the laws governing them are unconstitutionally vague or overbroad

Symbolic Speech

The government can regulate conduct that communicates if: there’s an important unrelated to suppressing the message and the impact on communication is no greater than necessary to achieve the government’s purpose

Examples of unprotected speech

Incitement of illegal activities, true threats, obscenity and sexually-orientated speech, obscenity in school, commercial speech, defamatory statements, and intentional infliction of emotional distress

Incitement of illegal activities

Substantial likelihood of imminent illegal activity and the speech is directed at causing imminent illegal activity. Not constitutionally protected

True threats

A conscious disregard of a substantial risk the speech will be taken as a threat of violence. Not constitutionally protected speech

Obscenity and sexually-orientated speech

Appealing to the prurient interest in sex (look at local/community standards). Must have no serious artistic, literary, political, or scientific value

Obscenity in school

Schools can punish profane and indecent language, but only for in-school speech. Out-of-school speech must actually be disruptive to school activities

Ability to punish in-school speech

Schools can punish in-school speech if it disrupts the learning environment or violates school rules. Student can have free speech, but it can be limited

Punishment for out-of-school speech

Must actually be disruptive to school activities

Defamatory statements if the plaintiff is a public official

Clear and convincing evidence of falsity and the speaker spoke with actual malice (knowing its falsity or recklessly disregarding the truth)

Defamatory statements if the plaintiff is a public figure

Clear and convincing evidence of falsity and the speaker spoke with actual malice (knowing its falsity or recklessly disregarding the truth)

Public Figure

One who puts themselves in the limelight and with access to mass media

Defamatory statements if the plaintiff is a private figure and it’s a matter of public concern

Compensatory damages if the plaintiff proves: Falsity of the statement and negligence of the speaker. Presumed/punitive damages if the plaintiff proves actual malice

Speech regulations of commercial speech

The government can punish and prohibit false/deceptive ads or ads promoting illegal activities. States can prohibit lawyers from in-person solicitation (only if the solicitee would be required to pay)

Right to privacy for government records

No invasion of privacy if the documents were lawfully obtained from government records and truthfully recorded. No media liability on illegally obtained recordings as long as they didn’t do the illegal activity, and it’s a matter of public concern

Types of government property in which speech could happen

Public forums, designated public forums, limited public forums, and nonpublic forums

Public forums

Places the government is constitutionally required to make available for speech (sidewalks and parks). Any regulation must be subject matter and viewpoint neutral or face strict scrutiny

Designated public forums

Government properties the government could close to speech but chooses to open to speech (public school facilities). Any regulation must be subject matter and viewpoint neutral or face strict scrutiny.

Limited public forums

Government properties only allowing certain groups or certain topics. Regulations must be reasonable and viewpoint-neutral.

Nonpublic forums

Government can, and does, restrict speech (military bases). Regulations must be reasonable and viewpoint-neutral

Freedom of Association

A fundamental First Amendment right that protects an individual’s ability to join with others to express collective ideas, beliefs, or pursue common goals. The government can require disclosure of membership if strict scrutiny is met

Punishments for association must…

Be for active affiliation with a group engaged in illegal conduct, knowledge of the group’s illegal aims, and specific intent to further those illegal aims.

Freedom of religion

The 1st Amendment fundamental right to practice your religion without government interference

Free exercise clause

The right to practice your religion without government interference. It can’t be used to challenge a neutral law of general applicability. If it’s not neutral, apply strict scrutiny

Establishment Clause

No government establishment of religion. No coercive religious participation

Establishment clause as it pertains to schools

No government-sponsored religious activities (school prayer), no exclusion of religious groups from using school facilities that are open to other clubs

The five actors in Constitutional law

Congress (do they have the authority to act? If yes, did they violate their limits?), Executive branch (did they exceed their powers? If not, did they exceed their limits?), Federal court (do they have the authority to hear the case?), State/local government officials (did they violate a limit on their power?), Private entity (is there a government action? If so, does it violate a limit?)

How to know whether something is an advisory opinion

If the federal court judgment would not affect the parties. State courts, however, can issue advisory opinions