Con law

Quick hits—scrutiny tiers, EPC/DPC

• Strict: narrowly tailored to advance compelling government interest

  • EPC: race, national origin

  • DPC: fundamental rights

• Intermediate: substantially related to advancing an important state interest

  • EPC: sex, gender, illegitimacy

  • DPC: —

• Rational basis: rationally related to a legitimate state interest

  • EPC: all other classifications

  • DPC: all other rights

Quick hits—scrutiny tiers, 1A

• Contribution limits

  • Intermediate scrutiny—closely drawn to important state interest

• Core political speech (vs. process surrounding elections)

  • Strict scrutiny

• Commercial speech

  • Serves substantial state interest

  • Directly serves

  • Narrowly tailored/good fit to that interest (no requirement for being least restrictive)

• Non-commercial speech

  • Not content neutral

    • Strict scrutiny = narrowly tailored to advance compelling government interest

  • Content neutral

    • Intermediate scrutiny = advances important government interest and is either narrowly tailored to that interest or does not burden substantially more speech than is necessary

• Time, place, manner

  • Public fora, designated fora

    • Content-neutral, viewpoint-neutral, narrowly tailored to important interest (no need to be least restrictive), leaves alternative methods of expression

    • Otherwise, if content-based or viewpoint-based, then strict scrutiny

  • Limited fora, nonpublic fora

    • Viewpoint-neutral, reasonably related to legitimate interest

    • Otherwise, if viewpoint-based, then strict scrutiny

• Symbolic

  • Furthers important government interest, unrelated to suppression of speech, and the incidental burden on speech is no greater than necessary

First Amendment—contribution limits

• Limits on donations to candidates are fine

• Limits on how much you can spend to get a candidate elected (if not coordinate with the candidate) are unconstitutional

• Limits on how much you can spend in support of or against a ballot measure are unconstitutional

• Limits on aggregate contribution amounts are unconstitutional

P&Is under 14A

• States may not deny their citizens of the privileges of national citizenship

  • Right to petition Congress

  • Right to vote for federal officers

  • Right to enter public lands

  • Right to interstate travel

    • E.g., can’t condition receipt of welfare benefits on living in the state for more than one year

• Bill of Rights not included (Slaughterhouse)

• Corporations not protected

Appeals to SCOTUS from state courts

• SCOTUS will hear an appeal from a state court only if the state court judgment turned on federal law

• Where there are adequate and independent non-federal grounds to support the state court’s decision, SCOTUS will decline to hear the case

13th Amendment

• Prohibits involuntary servitude

• Contains an Enabling Clause

• Applies not just to the government but also to private parties

• SCOTUS sees 13A as granting Congress the power to proscribe pretty much any private discrimination that can be characterized as a “badge or incident of slavery”

Coercive conditions

Fine so long as:

1. Condition is clearly stated

2. Relates to the purpose of the program

3. Is not unduly coercive

   • Up to 10% should be fine

Amendments not incorporated against the states

• 3A: quartering troops

• 5A: grand jury indictment in criminal cases

• 7A: right to jury trial in civil cases

Ex post facto laws and bills of attainder

Note: both of these apply to Congress and state legislatures alike!

• Ex post facto

  • Congress may not pass ex post facto criminal laws (note, doesn’t apply to civil)

  • This clause prohibits both creating criminalizing old behavior and increasing the penalty for already committed crimes

• Bills of attainder

  • These inflict punishment outside of the judicial process upon individuals identified either by name or past conduct

  • If the law promotes reasonably non-punitive goals, it will not be found a bill of attainder

Delegation and major questions

• Courts will consider whether an agency historically has asserted the powers it now claims and whether there is clear congressional authorization for the claimed power.

Appointments and removals

Appointments

• Appointments of independent counsel (special prosecutors) may be delegated, since special prosecutors are inferior officers

• Congress may appoint officers for its own internal legislative tasks, but may not appoint members of bodies with administrative or enforcement powers—that is something the President must do

• Congress may vest appointment of inferior officers in President, heads of department, o courts, but never in Congress alone

Removals

• President may remove high-level executive officers at will

• President may remove sole heads of independent agencies with significant executive power

• Congress may not give itself removal power over officers with administrative or executive authority; if it wants to remove them, it may do so via impeachment

  • Article II says that removal is via impeachment not just for President and Vice President, but also for “all civil Officers of the United States”

• If an employee is subject to removal by Congress alone, they may not be given any powers that are truly executive in nature

The Speech or Debate Clause

Members of Congress, and their aides, have immunity for any speech or debate in the regular course of the legislative process.

Exclusions:

• Doesn’t cover bribes

• Doesn’t cover state legislators

• Doesn’t cover speeches outside of Congress

• Doesn’t cover republication of defamatory statements originally made in Congress

Justiciability—case or controversy

• There must be some actual dispute

• No advisory opinions

Justiciability—political questions

Key factors:

• Textual commitment to another branch

• Availability of a judicially manageable standard

Political questions determinations are very case-by-case

Justiciability—standing

The three doctrinal requirements:

• Injury

  • Concrete and particularized

• Causation

• Redressability

Caveats:

• Organization standing is fine provided:

  • At least one member would have standing and

  • The case is germane to the organization’s purpose

  • No individual members are not required as parties

• Third-parties typically don’t have standing, but to have standing would have to show:

  • Standing in their own right

  • A special relationship between themselves and the third-party

  • Why it is difficult for the third-party to assert his own rights

• Taxpayers have very narrow standing; they can challenge statutes passed authorized by the Taxing and Spending power that infringe on an affirmative constitutional right, such as freedom of religion

  • But taxpayers do have general standing to sue their municipalities

• Attenuated chains of causation and chains of causation where third parties have agency will likely destroy standing

• Congress probably can’t manufacture standing if the congressionally created “injury” is not one that would have been recognized at common law, and the litigant would still need to show a “concrete stake” in the litigation

Justiciability—ripeness and mootness

• Ripeness

• Mootness

  • Exceptions:

    • Controversy has ended but is capable of repetition

    • Defendant has voluntary stopped the offending activity

Note: these are typically minor issues on essays.

Requirement of state action

The actions of private parties can qualify as state action if:

• Public function

  • Private actor performs functions that are typically reserved to the states (running a town, running an election)

• State has significantly involved itself with invidious discrimination

  • City personnel maintaining a park under a private trust

  • City leases space in a public building, supported with public funds, to a store that discriminates

• Private actor is using state property

• Private actions facilitated by state common law (Shelley v. Kraemer)

What won’t count:

• Issuing state liquor licenses

• Grants of corporate charters

• Granting public utility monopolies

Justiciability—11th Amendment, exceptions, and Ex parte Young

Core doctrine

• Who can sue states

  • The United States

  • Other states

• Who cannot sue states

  • Citizens of that state

  • Citizens of different states

  • Citizens of foreign states

• Caveat

  • No 11A issues with citizens suing municipalities (cities, counties)

Exceptions

• Congress may abrogate state sovereign immunity under 11A if it is enforcing 14A

• When states waive 11A sovereign immunity expressly

• When states have waived sovereign immunity under the “plan of the convention”

  • War powers

  • Bankruptcy

  • Eminent domain

Ex parte Young

• Even though you can’t sue states, you can sue state officials acting in their official capacity

• Limitations

  • Cannot be for damages paid out of state treasury (whether prospective or retrospective) and should not have effect of a quiet title action

    • However, if damages are coming out of the officer’s own pocket, that’s fine

  • Officer must have enforcement authority

  • Suit must not be based on state law

Commerce Clause powers

Congress may regulate:

• Interstate

  • Channels

  • Instrumentalities

  • Persons and things moving across state lines

  • Activities with “substantial effects” upon

• Intrastate

  • Economic activities

    • Regulation must be based on a rational belief that the regulated activity has substantial interstate economic effects

  • Non-economic activities

    • Regulated activities must have a direct and substantial effect on interstate commerce (no aggregation of individual actions)

Notes:

• Commerce Clause gives Congress the ability to regulate interstate commerce, not to force parties into interstate commerce (NFIB v. Sebelius).

• Commerce Clause is not just for domestic commerce; it expressly provides, “regulate commerce with foreign nations and among the several states, and with the Indian tribes”

Congressional powers

• Commerce

• Taxing and Spending

• War Powers

• Admiralty

• Naturalization

  • Non-citizens have no right to enter and may be refused entry based on their political beliefs

  • No right to citizenship if born to US parents but outside of the US

• Bankruptcy

• Enforce 13A and 14A

• Postal

  • Constitution grants Congress a monopoly over the postal power

• Necessary and Proper

  • Congress has whatever unenumerated powers it needs to effectuate it’s enumerated ones

• Property

  • No limits on property dispositions

• Investigatory power

  • Congress has the power to run investigations to obtain information as a basis for potential legislation

  • The power is broad, and need not be directed toward enacting a specific law

  • Congress can hold witnesses in contempt for failing to appear

  • Requirements and constraints:

    • Must be authorized by the house running the investigation

    • 5A applies

    • Information elicited must be relevant

    • Witnesses have a right to procedural due process

Note: there is no federal police power.

Dormant Commerce Clause (DCC)

• Within the Pike test

  • Where the state regulates an activity evenhandedly to effectuate a local public interest and the effects on interstate commerce are incidental

  • Standard = RBT

• Outside of the Pike test

  • Where the law discriminates on origin or location, or where the burden on interstate commerce is more than incidental

  • Standard = heightened scrutiny

    • The regulation further must further an important and non-economic state interest, and

    • There must be no reasonable alternatives available

• Exception

  • Market participant exception

    • If the state is a “participant” in the market (and so is not exercising its sovereign regulatory power) then its actions don’t count as regulation and don’t come within the DCC

  • Congressional “consent”

Privileges & Immunities (Article IV)

P&Is are those rights that are:

• Fundamental to interstate harmony / national unity

  • Doing business is a classic P&I

• Not limited by a substantial reason (no less restrictive alternative available)

Only natural persons have P&Is, meaning corporations cannot sue under P&Is. Corporations can, however, sue under DCC.

DCC vs. P&Is

• DCC

  • Mere commercial regulation

  • Congress can waive

  • Has market-participant exception

• P&Is

  • Someone walks into a state that’s not their own and gets treated differently

  • Congress cannot waive

  • Technically no exceptions, but if the state is paying for something, it’s probably not implicating a P&I—roughly analogous with MPE

Habeas requirements for noncitizens

• Congress cannot suspend habeas review for noncitizens detained as enemy combatants unless it provides a meaingful substitute

Contracts Clause

States may not retroactively and substantially impair existing contracts unless:

• Private contracts

  • If the impairment to contract is substantial, the law must be reasonable and appropriate to serve a significant and legitimate public purpose and must be a reasonable and narrowly tailored way of promoting that purpose

• Public contracts

  • Same test as above, but get stricter scrutiny

10th Amendment and anti-commandeering

Congressional legislation that imposes burdens on states passes muster so long as:

• Congress does not commandeer the states, e.g.,

  • Force them to administer a federal regulatory program

  • Force local law enforcement to carry out federal tasks, even temporarily

• The regulation is “generally applicable” to states and private parties alike

  • E.g., it’s fine if the regulation applies to states as participants in a given market

McCulloch immunity

Three types:

• Federal officials, building, etc.

• Private actors immune from state laws that discriminate against them based on their work for the federal government

• Ordinary preemption

Which amendments govern state vs. Congressional action

• 1A and the like are originally for Congress, and apply to the states through the 14th Amendment

• 14A EPC and DPC are originally for the states. 5A DPC applies DPC principles to Congress, and 14A EPC principles apply to Congress via 5A DPC, too

1st Amendment—Free Exercise Clause

• Bars laws that prohibit or seriously burden free exercise, unless there’s a compelling government interest

  • Exception: laws of general applicability that don’t intentionally burden religious freedom get Rational Basis review

    • Note: there’s an exception from RFRA, but that is out of scope

  • Exemptions to criminal laws and other regulations

    • Ministerial exemption: religious orgs granted exemption from suits alleging employment discrimination by ministers against their religious organizations

    • Wisconsin v. Yoder: Amish cannot be forced to send their kids to school past age 16

1st Amendment—Establishment Clause

• General principles

  • Coercion is unconstitutional

  • Use history and tradition to analyze whether a particular action does or doesn’t sponsor the establishment of religion

Case buckets:

1. Preferences for one sect over another

   • Strict scrutiny

2. No connection to financial aid or education

   • Incidentally favoring one religion over another in an attempt to benefit a wide variety of people is fine

3. Financial benefits to church-related institutions

   • Fine to give aid to a class of persons as long as the class isn’t defined by religion, and fine if as a result of the neutral benefit, public dollars flow to a religious organization

4. Religious activity in public schools

   • Prayer and bible reading in public schools is unconstitutional, whether voluntary or involuntary or whether designated as a period of silent prayer or meditation

   • Posting of 10 Commandments in classroom is invalid

1st Amendment—regulating speech in schools

1st Amendment—free speech, content-based and content-neutral restrictions

• Content-based—standard:

  • Strict scrutiny » narrowly tailored to advance a compelling government interest

• Content-neutral—standard:

  • Intermediate scrutiny » advances an important governmental interest and is either tailored to that interest or does not burden substantially more speech than is necessary

Unprotected speech:

• Obscenity

  • Test

    1. Appeals to prurient interest in sex (community standard)

    2. Is patently offensive (community standard)

    3. Lacks serious literary, political, or scientific value (national reasonable person standard)

  • Whether something is or isn’t obscene is a question of fact for the jury

• Misrepresentation and defamation

• Imminent lawless action

  • 1) Directed to inciting imminent lawless action (whether violent or not!)

  • 2) Likely to produce such action

• Fighting words

  • Words directed at a specific person that by their very utterance are likely to provoke an immediate violent response

1st Amendment—free speech, time, place and manner restrictions

• Scope: these are standards for regulations of speech on government property

• Must be viewpoint neutral (otherwise they get strict scrutiny)

• Requirements differ by type of forum

  • Public fora (generally open to the public) and designated public fora (not traditionally open to the public, but opened to public for a specific purpose)

    • Content neutral

    • Viewpoint neutral

    • Narrowly tailored to serve an important governmental interest (need not be least restrictive method)

    • Leave open alternative channels of communication

  • Limited public fora and non-public fora (open for limited used by certain groups or for certain subjects, or closed to the public)

    • Viewpoint neutral

    • Reasonably related to a legitimate government interest

Types of spaces:

• Public universities that open their spaces to groups when those spaces are not in use are designated public fora

• Schools are generally not public fora, and speech in schools can thus be regulated

• Military bases are generally not public fora, unless they keep their streets open as thoroughfares

• Airport terminals are not public fora

• Polling places on election day are not public fora

1st Amendment—free speech, commercial speech

Regulation permitted only if it:

• Serves a substantial governmental interest

• Directly advances that interest

• Narrowly tailored to that interest (reasonable fit; doesn’t need to be least restrictive means)

1st Amendment—free speech, freedom of association

• Applies only to associations that implicate First Amendment freedoms, not to social associations

• Standard: narrowly tailored to meet a compelling governmental interest

1st Amendment—free speech, broad limitations on regulations

Regulations must not be:

• Overly broad (sweeping in protected and unprotected speech)—for example:

  • Banning all First Amendment activities in central terminal of airport = broad

  • Prohibiting display of any lawn sign except for a For Sale sign = over-broad

  • Banning all door-to-door solicitation = over-broad

• Vague (such that you have to guess at the meaning)

• Permissive of unfettered enforcement discretion (e.g., no or limited standards by which to deny permits)

1st Amendment—free speech, edge cases

• Compelled support of government speech does not violate 1A

• Conditioning school funds on giving access to military recruiters does not violate 1A

• Statutes prohibiting explicit live sexual entertainment and fils in establishments licensed to sell liquor do not violate 1A (unless “irrational”)

• Regulation of prison speech subject to special standard, roughly RBT: reasonably related to legitimate penological interests

1st Amendment—free speech, regulating public employee speech

• If pursuant to employee’s official duties, may be regulated or punished

• If private speech:

  • On a matter of public concern: balance employee’s rights and government’s interests as an employer

  • On a matter of private concern: employer has broad discretion to regulate

1st Amendment—free speech, prior restraints

• Heavy presumption that these are unconstitutional

• Standard » government must show irreparable harm to the public will occur and there are narrowly drawn standards applied

• The restraining body must seek an injunction to enforce restraint/prevent dissemination

1st Amendment—free speech, symbolic conduct

Regulation of (symbolic) conduct is permitted if:

1. The regulation is within the constitutional power of the government

2. It furthers an important governmental interest

3. The governmental interest is unrelated to suppression of speech

4. The incidental burden on speech is no greater than necessary

How do you know when to apply this test vs. a public forum test? This test is for regulations that target conduct generally, where the conduct might also be used to convey expression—whereas public fora regulations are restrictions on the time, place, and manner in which expressive conduct can take place on government property. One targets conduct and on its face says nothing about expression—the other expressly targets expressive activity.

2nd Amendment

• Uses history and tradition instead of a scrutiny tier

• Unconstitutional limits

  • Total ban on in-home gun possession

  • Total ban on carrying a handgun in public

  • “May issue” licensing regimes (where officials have discretion to issue licenses and ask applicants to show some special need)

• Acceptable regulation

  • Background checks, reviews of mental health records, training requirements

  • Prohibitions on guns in “sensitive places”

  • Temporarily disarming individuals found to be credible threats to public safety

Substantive Due Process

• Trigger

  • Where a law limits the liberty of all persons

• Source

  • 14A

• Fundamental rights implicated

  • Privacy

    • Marriage

    • Procreation

    • Contraception

    • Childbearing

    • Living with extended family

    • Refusing medical treatment

  • Voting

  • Interstate travel

    • Durational residency requirements (waiting period b/f you’re a resident and qualify for state benefits) are subject to strict scrutiny

    • Also can be challenged under 14A PvIs or EPC

  • 1A rights

• Standards

  • Fundamental rights » strict scrutiny

  • All other rights » rational basis

    • Social and economic regulations

Equal Protection Clause

• Triggers

  • Discriminatory on face

  • Discriminatory application of facially neutral law plus discriminatory intent/motive

  • Disparate impact plus discriminatory intent/motive

• Levels of scrutiny

  • Strict scrutiny

    • Necessary to effect a compelling governmental interest

  • Intermediate scrutiny

    • Substantially related to an important governmental interest

  • Rational basis

    • Rationally related to a legitimate governmental interest

• Classifications

  • Suspect: race, national origin, alienage (being a non-citizen)

    • Race

      • Laws that are tailored to remedying past discrimination by a government agency will probably pass muster

      • Diversity is not a compelling state interest in higher education

    • Alienage

      • A suspect class only for purposes of discrimination by states, since the federal government has plenary power over immigration and naturalization

      • Except for states may discriminate on alienage for position integral to self-government (police, fire, jury service, etc.)

  • Quasi-suspect: gender, illegitimacy

  • Non-suspect: social, economic, age, disability, and all others

Takings Clause

What counts as a taking and the associated tests:

• Permanent physical invasions

• Temporary takings

  • Economic expectations

  • Reasonable expectation of owner

  • Length of delay

  • Good faith

• Regulatory takings, i.e., restrictions on use

  • Denial of all economic value

    • Taking

  • Reduction in economic value—balance the factors below:

    • Social goal being advanced

    • Economic impact

    • Interference with investment-backed expectations

Prohibition on exactions:

• Nollan/Dolan: if you can’t do it via the Constitution, you can’t do it via conditions on permits

  • Permit exactions must relate to a legitimate government interest (nexus) and the loss caused by the exaction must be roughly proportional to the adverse impact of the proposed building on public property

Note: federal takings must effectuate some power enumerated in the Constitution.

Article III courts and the Judicial Power

• Simple framing: Article I and Article II courts cannot be assigned work that would normally be assigned to an Article III court

• Fed Courts framing—there are three exceptions:

  • Agency courts

  • Military tribunals

  • Public rights cases

Jurisdiction stripping

• Congress can control SCOTUS’ appellate jx

• Congress can control lower courts’ original jx

But… if Congress denies original and appellate jx for review of cases alleging violations of certain constitutional rights, that might create DPC issues, esp. with habeas.

Procedural due process

• Trigger:

  • Intentional (rather than negligent) deprivation of:

    • Life

    • Liberty

    • Property

      • The usuals, plus anything where there’s a legitimate claim of entitlement

      • Public education

      • Welfare benefits

      • Continued public employment

• Requirements:

  • Generally

    • Notice, hearing before an impartial decision-maker

  • By type of deprivation, e.g….

    • Welfare: notice, evidentiary hearing prior

    • Disability: notice, evidentiary hearing before or after

    • Public employment: notice, pre-termination opportunity to respond, evidentiary hearing after

      • Note: this is only if the employee may be fired only “for cause”

    • Public education: notice, opportunity to explain

• Balancing test (Matthews v. Eldridge)

  • Importance of the private interest involved—e.g., deprivation of welfare benefits is high-stakes, because welfare benefits are based on financial need, but deprivation of disability benefits is lower-stakes, because disability benefits are not based on financial need

  • Risk of erroneous deprivation

  • State’s interest, including burdens on fiscal and administrative efficiency

Right to vote—basics

• Residency requirements: short ones (30 days) are ok, but requirements of 1 year will likely be held invalid

  • Members of armed forces station in an area cannot automatically be denied right to vote; must be given opportunity to prove their bona fide residency

• Identification is fine

• Conditioning on property ownership is usually invalid

• Poll taxes are invalid

Right to vote—candidate qualifications

• Registration fee must not preclude indigents from being candidates

• Permissible to require state officials to resign former officer if they want to run for a new one

• Fine for government to allocate more money to the two major parties than to minor ones

Right to vote—voting districts and gerrymandering

• Voting districts

  • Congressional elections » one person, one vote (EPC) requires that these be more or less mathematically equal in size

    • From text of Constitution

  • State and local elections » fine to deviate some, but 10% is presumptively invalid

    • From 14A EPC

  • Districts can be measured using total population rather than voting population

• Gerrymandering

  • Racial = bad

  • Partisan = fine

Supremacy and preemption

Types of preemption

• Express: “The states may not do X”

• Implied—three separate sub-types

  • Actual conflict between federal and state law

    • Conflict can be tricky to spot—e.g., treaty says you can import and sell goods from country X; state law says you have to label goods from foreign countries; there’s a conflict, because state is imposing additional requirements

    • The above is more like an obstacle than a conflict, but still counts for preemption

  • State law interferes with federal objective

  • Field preemption (where it appears that Congress has intended to occupy the entire field, thus precluding any state or local regulation)

    • E.g., comprehensive regulatory scheme where Congress created an agency to oversee the scheme

Note: when historic state police powers are involved, courts will presume that Congress has not preempted those powers and will look for clear and manifest purpose on the part of Congress to preempt.

Abstention

Pullman abstention—a federal court hearing a constitutional claim should abstain when:

• The case presents an unsettled question of state law, and

• Resolution of that question might narrow or eliminate the need for the court to make a constitution ruling

Younger abstention—a federal court should not enjoin pending state criminal prosecutions unless there is bad-faith harrasment or a patently invalid statute