Constitutional Law

Regulation of inter state commerce - state power

Although it is a federal power, states may regulate interstate commerce subject to the negative implications of the Commerce Clause.

The power to regulate interstate commerce is NOT exclusively federal; states DO have power to regulate aspects of interstate commerce, as long as they do not discriminate against out-of-state business or unduly burden interstate commerce and Congress has not preempted the field of regulations.

Exceptions to commerce clause - state power

1. When a state acts as a market participant

2. When a regulation is necessary to achieve an important govt purpose such as further an important, noneconomic state interest such as health or safety

3. Congressional approval

4. If does not discriminate between in-state and out-state residents, if burden exceeds the benefits

5. A regulation favoring local governments when performing government functions, such as exempting local bonds from state tax while subjecting bonds of other states to a tax, is excepted from the negative implications of the Commerce Clause.

following requirements to be upheld:

(1) The regulation must pursue a legitimate end;

(2) The regulation must be rationally related to that legitimate end; and

(3) The regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state’s interest in enforcing the regulation.

Privileges and immunities clause under Article IV

states may not discriminate against nonresidents regarding fundamental rights-i.e., those involving important commercial activities (such as pursuit of a livelihood) or civil liberties-absent a substantial justification: i.e., the state shows that nonresidents either cause or are part of the problem the state is attempting to solve, and that there are no less restrictive means to solve the problem.

Privileges or Immunities clause under Fourteenth amendment

Privileges or Immunities Clause prohibits states from denying their citizens the rights of national citizenship, which includes the right to travel. Other rights protected include the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to enter public lands.

Mostly limited to right to travel

Liberty under due process clause

The term "liberty" includes more than just freedom from bodily restraints. A deprivation of liberty occurs if a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute. Damage to one's reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law.

Procedural due process considerations

The courts consider the factors raised in the remainder of the choices:

(i) The importance of the individual's interest that is involved,

(ii) The value of specific procedural safeguards of the individual's interest, and

(iii) The government's interest in fiscal and administrative efficiency. Normally, the person whose interest is being deprived should also receive notice of the government's action and have an opportunity to respond before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.

Business license and due process

A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property.

Due process for removal of public employee

Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law. The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. Due process also mandates that a public employee whose employment can only be terminated for cause be given an evidentiary hearing.

Continued public employment may be a protected property interest if there is a clear practice or mutual understanding that an employee can be terminated only for "cause."

Due process and right to redress

His right to redress, guaranteed by the state through its statutory enactment, is itself a property right. Although the legislature may elect not to confer a property interest, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. [Logan v. Zimmerman Brush (1982)] Thus, the state statute cannot be applied so as to deprive the employee of his property interest in using the statutory procedure for possible redress of unfair employment practices without at least affording him an opportunity for an appropriate hearing. Note that the finding of recklessness is important: government negligence is insufficient to state a procedural due process claim. There generally must be an intentional or reckless government action.

Standard for due process or equal protection clause - no fundamental right or suspect or quasi-suspect classification is involved

If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless it is arbitrary or irrational. A rational basis standard applies.

One person one vote - right to vote under equal protection

Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required under the one person, one vote principle. The rationale is that voting is a fundamental right, diluting one person's vote compared to another's raises equal protection concerns, and there is no compelling interest that would justify more than a couple of percentage points difference from district to district.

Suspect classification

1. Race

2. national origin

3. Alienage

Gender - quasi-suspect classification. triggering an intermediate standard of scrutiny in determining whether a government action or law violates equal protection

Corrective actions - race discrimination

Under the Equal Protection Clause, a government classification based on race is constitutional only if the government can show that the discrimination is necessary to achieve a compelling interest. The Supreme Court has held that remedying past discrimination is a compelling interest and that the type of hiring program described in this choice was necessary to achieve that interest.

Discrimination based on alienage

A STATE LAW that denies government benefits to an individual based on alienage is subject to strict scrutiny and will be upheld only if the state proves the discrimination is necessary to achieve a compelling government interest. Generally, alienage classifications made by states are subject to strict scrutiny. (However, there is an exception where the law is related to participation in the self-government process. Such laws are subject only to the rational basis test.)

A FEDERAL LAW that denies government benefits to an individual based on alienage is not subject to strict scrutiny. Because the Constitution gives Congress plenary power over aliens, federal classifications based on alienage generally are tested under the rational basis test (i.e., valid unless the challenger can prove that the classifications are not rationally related to a legitimate government interest).

A STATE LAW that makes aliens ineligible for public employment in positions that directly affect the self-governing process are not subject to strict scrutiny like other state alienage classifications. Laws relating to the self-governing process are subject only to a rational basis review.

A STATE LAW that penalizes an individual who is an undocumented alien also is not subject to strict scrutiny, because the Supreme Court has not held that undocumented aliens is a suspect classification.

Govt regulation in public or designated public forum

To avoid strict scrutiny and be upheld, a regulation must be content neutral and narrowly tailored to serve an important government interest, and it must leave open alternative methods of communication.

Forums - places available for speech

A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks.

A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school).

A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate).

Fighting words

1. Statements meant to place a person in fear of bodily harm and

2. statements likely to incite physical retaliation are both classic examples of fighting words subject to government regulation.

3. Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning) is considered to be a form of fighting words, even though there is no actual spoken threat. This is because the conduct is intended to convey a message that is unprotected by the First Amendment.

Abusive language is not

Speech presenting Clear and present danger of imminent lawless action

The Supreme Court has ruled that a few categories of speech are not protected by the First Amendment. Among these categories is speech presenting a clear and present danger of imminent lawless action. In determining whether speech falls within this category, the Supreme Court applies the clear and present danger test.
Test - Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action.

Fairness consideration for opposing party

Federal Rule 106 provides that, when a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time.

Limited public forum

To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose.

Public schools as public forums

The Supreme Court has held that curriculum-based public high school activities are not public forums. Content regulation of nonpublic forums is allowed as long as the regulation is viewpoint neutral and reasonably related to a legitimate government purpose.

Freedom of religion

The Free Exercise Clause prohibits government from punishing conduct just because it is religious. If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid. For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens.

A court MAY assess the sincerity of a person's religious beliefs when relevant to a particular case. Although the Free Exercise Clause protects the freedom of belief, perhaps absolutely, a court may assess whether a person who says he acted based upon religious beliefs actually held the beliefs claimed.

A law or government program must be necessary to serve a compelling government interest if it includes a preference for some religious groups over others. Government actions that include sect preferences must meet a strict scrutiny standard to be valid under the Establishment Clause.

Establishment clause

In determining whether government action is valid under the Establishment Clause, courts will consider whether the action is neutral with regard to religion. Next, courts will consider whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers. If so, the action is unlikely to violate the Establishment Clause.

"The government action is narrowly tailored to promote a compelling interest" is not part of the test for determining the validity of government action under the Establishment Clause. This strict scrutiny test is applied to determine the validity of government action that includes a sect preference under the Establishment Clause.

Under the test laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971), such government action must satisfy three separate requirements:

(1) Its primary purpose must be secular, rather than to benefit religious groups;

(2) Its primary effect must not be either to promote or inhibit religion; and

(3) Its operation must not lead to excessive entanglement between government and religion.

President power to spend funds

The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress's reason for making the appropriation. The President has no "legislative" power in internal affairs, and has a duty under Article II to "see that the laws are faithfully executed." In contrast, Congress clearly has the power to spend to "provide for the common defense and general welfare." [U.S. Const. art. I, §8] Hence, the Supreme Court has ruled that there is no constitutional basis for the President to "impound" (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated. [Kendall v. United States (1838)]

Market participant

Although the Commerce Clause generally prohibits states from discriminating against out-of-state businesses to benefit local economic interests, the market participant exception applies here. The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., buying or selling products, hiring labor, giving subsidies, etc.). Because the pricing scheme here involves the sale of goods, the state can constitutionally charge whatever prices it desires to whomever it desires.

Takings clause - fifth amendment

If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a “taking” requiring the payment of “just compensation” under the Fifth Amendment. However, regulations that merely decrease the value of property (for example, prohibit its most beneficial use) do not necessarily result in a taking, as long as they leave an economically viable use for the property. The court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives.

The Fifth Amendment to the Constitution prohibits the government from taking private property “without just compensation.” The Supreme Court has held that a land use regulation may constitute a regulatory taking when the regulation deprives the owner of all economically viable use of his land (Lucas v. South Carolina Coastal Council). The purchaser in this problem bought the land with the expectation of developing it. However, the county’s regulation, enacted after the purchase, barred him from doing so. The blanket prohibition on any sort of development deprived the purchaser of any means of recouping any part of his investment and was therefore a regulatory taking of the purchaser’s land. As a result, the Taking Clause requires that the county pay just compensation to the purchaser.

Thirteenth amendment

The Thirteenth Amendment simply provides that neither slavery nor involuntary servitude shall exist within the United States and gives Congress the power to adopt appropriate legislation to enforce the proscription. Since the amendment is not limited to proscribing state action, Congress may adopt legislation regulating private parties. Under the amendment, the Supreme Court has allowed Congress to prohibit any private conduct that Congress deems to be a "badge" or "incident" of slavery, and has upheld statutes regulating private contracts.

Affirmative action for women

When examining federal government action involving classifications of persons, the Supreme Court, using the Due Process Clause of the Fifth Amendment, applies the same standards that it applies to state actions under the Fourteenth Amendment Equal Protection Clause. When analyzing government action based on gender classifications, the Court will apply an intermediate standard and strike the action unless the government proves, by an exceedingly persuasive justification, that the action is substantially related to an important government interest. Applying this standard, the Court has generally upheld classifications benefiting women that are designed to remedy past discrimination against women, because remedying past gender discrimination is an important government interest.

Mootness

A federal court will not hear a case unless there is a real, live controversy at all stages of the proceeding, not merely when the case is filed. Because the student is no longer required to pay nonresident tuition, there is arguably no controversy and the case may seem moot. However, a class action is not moot, and the class representative may continue to pursue it-even if the representative's own controversy has become moot-because the claims of others in the class are still viable.

Eleventh amendment

The Eleventh Amendment prohibits federal courts from hearing most private actions against state governments. This prohibition includes actions in which the state is named as a party or in which the state will have to pay retroactive damages.

Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment

Although the Eleventh Amendment prohibits most private actions against state governments, private parties may bring actions to enjoin an officer from future conduct that violates the Constitution or federal law. This exception includes enjoining an appropriate state official from enforcing an unconstitutional state law.

Eleventh Amendment only bars federal-court suits against a state brought by private citizens, not federal-court suits brought against a state by the federal government

Exceptions -

(a) The Amendment doesn’t apply where the suit is against a city or other political subdivision of a state. For the Amendment to apply, the suit must be against the state itself (or, according to some decisions, state agencies and other entities fully owned by the state, like state universities).

(b) The Amendment doesn’t apply unless the suit is brought in federal court. So, for instance, if a citizen of State A brings suit against State A in the courts of State A (or even in the courts of State B), the Eleventh Amendment doesn’t bar the suit.

© The Amendment doesn’t apply if the suit is brought against a state official for money damages, assuming that if successful the suit will result in the damages being paid by the official (rather than by the state).

(d) The Amendment doesn’t apply where the suit is brought (even in federal court) by the federal government against a state.

Dormant commerce clause

State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid as violations of the negative implications of the Commerce Clause (or “Dormant Commerce Clause”). For a regulation to discriminate against interstate commerce, it must treat economic interests from within the state differently from economic interests from outside of the state.

The next issue is whether the burden of the statute outweighs the promotion of a legitimate local interest. If a state law that treats local and out-of-state interests alike nonetheless burdens inter- state commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest.

dormant Commerce Clause is violated essentially whenever the state acting as regulator prefers its own citizens over out-of-staters, even if the state is honestly trying to protect its citizens’ health or welfare — a state cannot, for instance, ban imports of a food on food-safety grounds while not imposing the same food-safety standards on foods made instate.

Exception - dormant Commerce Clause does not apply to the conduct of a state that is acting as a market participant rather than as a regulator.

But even where a state takes an action that would ordinarily be held to violate dormant Commerce Clause principles, Congress is always free to affirmatively consent to the state action, in which case there is no violation.

Want of case or controversy

Under Article III of the Constitution, federal courts may only decide real "cases and controversies," and not issue advisory opinions. The state law at issue here is a "proposed" statute. Therefore, a federal district court is without jurisdiction to decide its constitutionality.

Supremacy clause

The Supremacy Clause, recited in Article VI of the Constitution, says that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land[.] ” The clause means that in the case of a conflict between federal law and state law, state law must give way.

(1) State governments may not regulate federal government activities. States thus lack the authority to impose regulations on federal military bases. The Supremacy Clause prevents such state control of the federal government.

(2) Supremacy Clause allows Congress to require that state courts enforce federally-created rights.

Foreign commerce

For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President.

Commandeering state officials - tenth amendment

The Tenth Amendment prohibits the federal government from commandeering state officials by requiring state officials to act. Here, the rule likely requires state officials to detain suspects even after they have been cleared of violating state laws. Thus, the rule violates the Tenth Amendment.

concept of state sovereignty embedded in the Tenth Amendment prevents the federal government from requiring a state to enact into law a federally-mandated regulatory regime

The Tenth Amendment says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Generally, the Tenth Amendment does little to curtail federal power. But the modern Supreme Court views the Amendment as recognizing state sovereignty, and as protecting that sovereignty against federal intrusion. In particular, the Court holds that state sovereignty as protected by the Amendment means that “[t] he Federal Government may not compel the States to enact or administer a federal regulatory program.”

Or, as the Court said in that same decision, “Congress may not simply ‘commandeer the legislative processes of the States’ by directly compelling them to enact and enforce a federal regulatory program.”

Privacy of marriage and family matters

The Court uses a strict scrutiny standard when a suspect classification or a fundamental right is involved, and imposes on the government the burden of proving that the law is necessary. Because the statute affects the couple's right to privacy of marriage and family matters, the state must show that the law is necessary to effectuate a compelling state interest.

Senators and defamation - speech and debate clause

Speech and Debate Clause grants absolute immunity from civil liability to members of Congress for statements they make on the floor of the House or Senate, even if those statements would otherwise constitute libel or slander.

Article I, Section 6 provides that "For any speech or debate in either House [members of Congress] shall not be questioned in any other place." Senators who make statements on the Senate floor have immunity from defamation suits, even if the defamation suit could otherwise overcome the high standard for suits against public figures.

Not to republication - if the member then repeats a statement made on the floor while speaking outside of the legislative process — such as in a communication to constituents — the immunity does not apply to that “republication”; but the original statement on the floor of Congress receives full tort immunity

Equal protection clause and aliens

The Supreme Court has ruled in a handful of cases that a state may require citizenship for important state jobs that directly affect the political process, provided the state has a rational basis for such discrimination. [See, e.g., Foley v. Connelie (1978)-state troopers; Ambach v. Norwick (1979)-primary and secondary school teachers; Cabell v. Chavez-Salido (1982)-probation officer] This is an exception to the usual rule that state classifications of aliens are "suspect" and subject to strict scrutiny.

Public forum analysis - essay

1. The First Amendment to the United States Constitution guarantees the freedom of speech and assembly. Applicable to states via due process clause of fourteenth amendment. Under the First Amendment, regulations on the content of speech are subject to strict scrutiny and, therefore, are generally invalid.

2. However, the government may regulate the conduct of speech a bit more with time, place, and manner regulations. A time, place, and manner regulation of speech in a public forum must (i) be content neutral; (ii) be narrowly tailored to serve a significant government interest; and (iii) leave open alternative avenues of communication. If, instead, the regulation is content-based, it will be subject to strict scrutiny.

School as designated public forum - MEE

The main issue with regard to Church Club’s request to use the classrooms is whether a school can prohibit religious clubs from using public property thrown open for public use. School classrooms are not traditional public forums and generally are not available for the exercise of First Amendment speech or assembly rights. However, if a school chooses to throw open its facilities for public use when the rooms are not being used for school purposes, the facilities become designated public forums. At the times designated public forums are open for speech activities, their use may be limited only by regulations that would be allowed in public forums: The regulation must be content neutral, be narrowly tailored to serve a significant government interest, and leave open alternative avenues of communication. Again, if the regulation is content-based, it will be subject to strict scrutiny.

Use of school facilities after school hours - free exercise clause

The main issue is whether limiting the use of the classrooms to secular clubs violates the Free Exercise Clause. The Free Exercise Clause requires states to act with neutrality toward religious beliefs. This means that a state may not limit eligibility for a governmental benefit to nonreli­gious organizations. Even if a state or other government actor has no obligation to create a benefit, once it has done so, it may not ban religious groups similarly situated to eligible secular parties from receiving the benefit merely because they are religious.

trespass in non-public forum - MEE

First it should be noted that the trespass law itself does not regulate speech; it regulates only conduct and is outside the protections of the First Amendment. However, the sign on Principal’s door prohibiting entry without an appointment arguably regulates entry into the office for speech activities. A principal’s office is a nonpublic forum—government property not traditionally open for speech activities. A person does not have any right to access nonpublic forums for speech activities, and speech can be regulated in such forums by viewpoint neutral rules not aimed at the suppression of speech. Here, Principal’s office sign is viewpoint neutral, providing only that no one would be admitted without an appointment. The rule does not seem to be aimed at the suppression of speech, but rather seems appropriate for maintaining the use of workspace for its intended purpose. Therefore, the First Amendment will not afford Father protection here.

Neutral law and freedom of religion

the right to free exercise of religion does not relieve a person of the obligation to comply with a valid and neutral law of general applicability, even if the law requires conduct that the person’s religion forbids.

This is a case in which a law requires all persons to perform (or not perform) a particular act (call the act “X”), and a person accurately claims that her religion forbids (or requires) act X. In that situation, the Supreme Court has ruled that the law does not violate the claimant’s free exercise rights, as long as the law is a valid generally-applicable law, i.e., one that was not enacted in order to disfavor actions motivated by religious beliefs.

Law must be ‘valid’ - “valid,” presumably the Court meant that the law must be rationally related to the achievement of a legitimate state objective, something required by the Fourteenth Amendment’s Equal Protection and Due Process Clauses

Obscenity

material cannot be obscene unless the work is “patently offensive,” something that requires portrayal of “hard core sexual conduct.”

(1) The “average person, applying contemporary community standards” would find that “the work, taken as a whole, appeals to the prurient interest”;

(2) the work must “depict[] or describe[], in a patently offensive way, sexual conduct” of a sort that is specifically defined by the obscenity law in question; and

(3) the work, “taken as a whole,” must “lack[] serious literary, artistic, political, or scientific value.”

nudity alone is not enough to make material legally obscene[.]”

Supreme court jurisdiction issues

(1) Supreme Court has the authority to review state court decisions, but only to the extent that those decisions involve matters of federal law. The doctrine of “independent and adequate state grounds” derives from this key principle.

(2) Original jurisdiction - Under Article III, § 2, the Supreme Court has original jurisdiction in (and only in) all cases affecting ambassadors, other public ministers and counsels, and those in which a state shall be a party.

(3) Appellate jurisdiction - in all cases falling within the federal judicial power, and not falling within the Supreme Court’s original jurisdiction, the Supreme Court “shall have appellate jurisdiction . . . with such exceptions, and under such regulations as the Congress shall make.” Supreme Court cases have interpreted this language as meaning that Congress may remove an entire subject area from the Supreme Court’s appellate jurisdiction, as long as Congress is acting in a substantively neutral way (rather than, say, trying to dictate the outcome in a particular type of case).

(4) non justiciable political question - There are two main reasons why a suit might be held to involve a nonjusticiable political question: (1) the case involves a “textually demonstrable . . . commitment of the issue” by the Constitution to Congress or to the President, rather than to the judiciary; or (2) the case presents a “lack of judicially discoverable and manageable standards for resolving” the issue.

Commercial speech and freedom of expression

commercial speech (that is, expression “related solely to the economic interests of the speaker and its audience.”

restrictions on commercial speech must satisfy intermediate-level scrutiny, and a close fit between means and end is one of the requirements for that level of review.

Government has somewhat greater scope to impose content-based restrictions on commercial speech than to place such restrictions on, say, core political speech. But even contentbased restrictions on commercial speech are subjected to what amounts to mid-level review.

Steps -

First, the court will determine whether the commercial speech gets First Amendment protection at all. There are two types of (2) commercial speech that are completely unprotected by the First Amendment: (a) speech that is “deceptive” (e.g., false advertising); and (b) speech that relates to illegal activity (e.g., advertising of illegal narcotics).

(2) Assuming that the commercial speech does not fall within either of the unprotected categories in No. 1, then government’s restriction of that speech based on the speech’s content must survive a three-part review that amounts to midlevel scrutiny. The restriction will be struck down unless the government bears the burden of establishing each of the following three things: (a) The interest that the government is trying to further by the speech restriction must be “substantial,” i.e., important; (b) The restriction must “directly advance” the governmental interest in (a); and (c) The restriction must be no more extensive than is necessary to serve the governmental interest. In other words, there must be a quite close “means-end fit” between the governmental objective and the restriction the government chooses.

Equal protection and right to travel

even non-emergency health care is deemed to be such a “vital governmental benefit” that a state may not deny this benefit to recently-arrived residents while awarding it to other residents.

The Supreme Court has treated the constitutional “right of interstate migration” — sometimes loosely called the “right to travel” — as being of fundamental importance.

Therefore, if State A wants to provide an “essential governmental benefit” less generously to persons who recently took up residence in State A from out-of-state than to persons who have long resided in State A, the state will be deemed to have violated the Equal Protection Clause unless it can show that its length-of-residence distinction is necessary to achieve a compelling state objective (i.e., that the distinction can survive strict scrutiny).

The Court held that the “right of interstate travel” insures “new residents” the “same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents.” (The Court made it clear that a state may require that newly-arrived persons establish that they are bona fide permanent residents of the state; but where the person proves that she does indeed intend to reside permanently in the state, the fact that she moved in relatively recently can’t be used as the basis for denying the benefit.)

President power to manage executive branch

Constitution gives the President authority to manage the executive branch, and that authority is at its maximum where, as here, the President is acting pursuant to Congress’s implied authorization of his action.

Article II is the constitutional source of the President’s power. Section 1 of that Article begins by saying that “the executive Power shall be vested in [the] President[.] ”

This grant of executive power means that the President has authority to manage the executive branch of the federal government, which includes all federal executive agencies. The President’s authority to manage the executive branch is not “plenary” — for instance, it is Congress, not the President, that has the power to appropriate the funds needed to run the executive branch, and therefore the power to set conditions on that funding.

Congress may overturn an executive action only by passing a statute, Congress has correctly set up an executive agency, and has correctly given to that agency the power to make certain executive decisions in furtherance of an enumerated congressional power (the power to regulate the use of federal lands). But once the agency has used its delegated powers to make a decision, Congress may only overturn that decision by enacting a statute, that is, by (1) having both Houses vote to pass the statute, and (2) presenting the statute for the President’s signature or veto. What Congress has tried to do here, instead, is to enact a “legislative veto,” by which one House (or a committee of one House) purports to single-handedly overturn an executive decision. And the legislative-veto technique has been held to be a violation of both the requirement

Newspaper and freedom of speech

“[I] f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

Exception - state may punish publication only if the state shows that its ban furthers a “state interest of the highest order,” whereas this choice merely reasons that the state has not shown “adequate justification.” But the state’s asserted interest in protecting children “from the details of executions,” while worthy, is unlikely to be found to be an interest “of the highest order.”

State regulations in the social and economic-welfare sphere that neither classify based on suspect or semi-suspect categories nor impair fundamental rights

rational relation review - Steps

The rational relation test is the easiest test for government to satisfy in all of constitutional law. In both substantive due process and equal protection cases, here’s how the test applies:

(1) First, the burden of persuasion is on the person challenging the governmental regulation (here, the plaintiff who owns the rental housing), not on the government.

(2) Second, the challenger must show that there is not even a “rational relationship” between (a) the means (the regulation) chosen by the government and (b) any “legitimate” state interest.

if there is even a single “hypothetical” state interest that is “legitimate” (whether or not the government was actually intending to further that interest), then even a very imperfect “fit” between the means chosen by the state and this hypothetical legitimate state interest will suffice to defeat the challenger, as long as it would not be wholly irrational to believe that the means might slightly advance the interest.

Fundamental rights under due process and equal protection clause

Due process - As to fundamental rights, in the substantive due process area the only fundamental rights have to do with childbearing (e.g., abortion and contraception), child rearing, the right to marry, and the right to sexual expression.

Equal protection - And in the equal protection area, the only rights thus far recognized as fundamental are ones involving aspects of marriage, sexual relations, voting, court access and the right to travel.

Overbreadth and vagueness doctrine - first amendment

Overbreadth - A statute is overbroad if, in addition to proscribing activities that may be constitutionally forbidden, it also sweeps within its coverage a substantial amount of speech or conduct that is protected by the guarantees of free speech.

Vagueness - The doctrine of vagueness is similar but not identical to that of overbreadth: A statute will be void for vagueness if the conduct forbidden by it is so unclearly defined that persons of common intelligence would have to guess at its meaning and would differ as to its application.

Exception to the standing rule - a litigant challenging the constitutionality of a law must show that the law violates that person’s own constitutional rights — the litigant is not permitted to show that the law violates the constitutional rights of persons not before the court. But because of the special risks posed by unduly restrictive restraints on speech protected by the First Amendment, the doctrine of “First Amendment overbreadth” represents a major exception to this “no third-party standing” principle: “An individual whose speech is unprotected by the First Amendment and who could constitutionally be punished under a more narrow statute may argue that the law is unconstitutional because of how it might be applied to third parties not before the Court.”

Public function doctrine - first amendment

the “public function” doctrine “says that a private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government.”

The Supreme Court has held that the operation of a “company town” — where a private company not only owns residential real estate but supplies all municipal functions for that real estate, like streets, a sewer system and a “business block” — does fall within the public function doctrine

Ex post facto clause

the statute criminalized conduct that took place before the statute’s enactment. Article I, § 10 of the Constitution prohibits the states from passing any “ex post facto Law.” An ex post facto law is a law that imposes a punishment for an act that, at the time it occurred, was not punishable. That’s what the state is doing here, by prosecuting the principal for actions he took before the new statute was enacted

Bill of attainder

A bill of attainder is a legislative act that applies either to named individuals or to easily-ascertainable members of a group, in such a way as to inflict punishment on them without a judicial trial.

content-neutral regulations

Where a regulation has a significant impact on protected expression, but is “content neutral” (i.e., not related to the message being communicated), the regulation is subject to midlevel review: It must be “narrowly tailored” to further a “significant governmental interest.”

Appointment clause - president

The Appointments Clause (Art. II, § 2, cl. 2) provides that the President shall “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors . . . Judges of the Supreme Court, and all other Officers of the United States[.] ”

The statute here violates this Clause in two respects. First, by saying that the President may appoint an ambassador only from among the names appearing on a congressionally-generated list, the statute violates the principle, expressed in the Appointments Clause, that the President may nominate anyone he or she wishes as an ambassador or other principal federal officer (subject, of course, to Senate confirmation). Second, the phrase “by and with the advice and consent of the Senate” means that a presidential 162 appointment of an ambassador or other principal federal officer must be affirmatively approved by a vote of the Senate; the Senate is not permitted to abdicate its duty to consent (or not consent) to such an appointment by means of a statute stating that lack of disapproval within 30 days shall be the equivalent of approval.

Due process and parent’s interest in controlling child’s education

The parents would sue on a Fourteenth Amendment substantive due process theory. Under substantive due process analysis, any governmental action that is found to substantially impair a “fundamental liberty interest” must be subjected to strict scrutiny. The Supreme Court has long held that a parent has a fundamental liberty interest in controlling his or her child’s education, and that a state requirement that the parent use the public schools violates that liberty interest.

Denial of admission on the basis of association with a group

freedom of association prevents the government from denying a privilege or benefit, such as bar membership, based solely on membership in an organization.

Second, the state cannot deny a privilege or benefit based upon the applicant’s refusal to disclose her mere membership in an organization — if a membership could not by itself be the basis for denying a privilege, the government cannot require disclosure of the membership as a condition of receiving the privilege, either. On the other hand, the government may withhold a benefit or privilege (such as bar membership) based on the applicant’s membership in an organization that the applicant knows advocates the overthrow of the government by force or violence, if the applicant shares the specific intent to further the organization’s illegal goals. Baird, supra. And the government is permitted to (1) ask questions sufficient to find out whether the applicant has such a specific intent; and (2) deny membership to an applicant who will not answer such questions about her intent.

Standing - Article III controversy

Standing is an interest in the outcome of a controversy. An organization has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate the following: (1) that there is an injury in fact to some members of the organization that would give these individual members a right to sue on their own behalf; (2) that the injury to the members is related to the organization’s purpose; and (3) that neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.

Tax power of congress

Article I, § 8, cl. 1, of the Constitution gives Congress the power to “lay and collect Taxes . . . and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States.” So Congress can tax for the purpose of “provid[ing] for the . . . general Welfare.” That’s what it is doing here. Because the power is plenary (i.e., complete) a tax measure will be upheld so long as it bears some reasonable relationship to revenue production and does not violate any specific constitutional provision.