MBE Constitutional Law

Constitution Article III

requires the establishment of a Supreme Court and permits Congress to create other federal courts and limit their jurisdiction

Scope of Judicial Power

Limited to cases and controversies:

• arising under US Constitution, federal laws, federal treaties

• when the US is a party

• between two or more states, or between a state and citizens of another state

• between citizens of different states, or between citizens of the same state claiming lands under grants of different states or

• between a state—or its citizens—and foreign states, citizens or subjects

What does the judiciary have the power to review?

• another branch’s act and declare it unconstitutional

• the constitutionality of a decision by a state’s highest court and

• state actions under the Supremacy Clause to ensure conformity with the Constitution

11th Amendment

A jurisdictional bar that:

• prohibits citizens of one state from suing another state in federal court

• immunizes states—but not local gov’ts—from suits in federal court for money damages or equitable relief and

• Bars suit in federal court against state officials for violating state law

Exceptions to the 11th Amendment

Consent, state official sued for injunctive or declaratory relief, damages paid by state officers, and congressional enforcement of the 13th, 14th, and 15th Amendment Rights

Sovereign Immunity

Bars citizens from suing their own state in state or federal court without the state’s consent

Adequate and Independent State Grounds

The US Supreme Court cannot review a final state-court judgment that rests on adequate and independent state grounds

adequate = state law fully resolves the issues

independent = the state court’s ruling does not depend on an interpretation of federal law

Plaintiff Elements for Standing

1. Injury in fact. concrete and particularized injury, must be actual or imminent

2. Causation. Plaintiff’s injury was caused by the defendant’s violation of a constitutional or other federal right.

3. Re-dressability. The relief requested will likely prevent or redress the injury.

4. Prudential Standing. The plaintiff is a proper party to invoke judicial resolution of the dispute.

Standing: taxpayer status

a taxpayer generally has no standing to challenge a gov’ts allocation of funds, but a taxpayer does have standing to:

• litigate how much is owed on her tax bill

• challenge gov’t expenditures as violating the establishment clause

Standing: third party standing

A plaintiff lacks standing to bring a lawsuit based on a third party’s claims except when:

• there is a special relationship between the plaintiff and third party

• the third party is unable to assert its own rights and

• there is a risk that disallowing third party standing will dilute the third party’s rights

standing: organizational standing

an organization can sue on its own behalf or on behalf of its members if:

• its members would have standing to sue in their own right and

• the interests at stake are germane to the organization’s purpose

Ripeness

Plaintiff must have experienced a real injury (or imminent threat thereof). Action brought too soon = unripe

Mootness

Must be a live controversy at each stage of review

A case is not moot in these situations:

• controversy is capable of repetition but is evading review (ie, it will not last long enough to work through the judicial system)

• defendant voluntarily ceases its illegal or wrongful action upon the commencement of litigation but can resume it any time

Advisory Opinions

Abstract or hypothetical disputes are prohibited. An actual case or controversy must exist. Supreme court cannot issue b/c of case or controversies requirement.

Declaratory Judgments

Lawsuits seeking a determination of the legal effect of proposed conduct but not damages or injunctive relief are permitted if the conduct poses a “real and immediate danger” to a party’s interests

Political Questions

An issue is not subject to judicial review when the Constitution has assigned decision-making on the subject to a different gov’t branch, or the matter is inherently not one that the judiciary can decide.

Abstention - When can a court abstain?

Pullman: because there is unsettled case law

Younger: pending criminal cases in the absence of bad faith, harassment, or invalid state statute

Burford: parties seeking injunctive relief that would interfere with complex state regulatory scheme

Colorado River: case substantially simiolar to another case being heard in state court

Does congress have general power to legislate for the general welfare?

NO. Congress does not have power to legislate for general welfare. Congress MAY spend for the general welfare.

Powers of Congress: Commerce

power to regulate the channels and instrumentalities of interstate commerce, as well as intrastate activities that substantially affect interstate commerce.

includes intrastate activities that have no direct economic impact on interstate commerce, so long as there is a rational basis for concluding that the total incidence of the activity in the aggregate substantially affects interstate commerce

limited power to regulate noneconomic intrastate activity.

Powers of Congress: Taxation

must have a reasonable relationship to revenue production to be upheld as a tax by Congress. General Welfare Clause: congress has plenary power to impose taxes to raise revenue for any public purpose

Powers of Congress: Spending

Can spend for the general welfare and may place conditions on disbursed funds.

Congress CANNOT:

1. Impose unconstitutional conditions

2. enforce conditions that are ambiguous or unrelated to the program or

3. coerce state behavior with its spending conditions

Powers of Congress: Property Power

no limit on disposal of federal property.

May ONLY take private property for public use with just compensation and to effectuate an enumerated power

Powers of Congress: Over Noncitizens and Citizenship

Plenary power over noncitizens, subject to the 5th Amendment Due Process clause. Exclusive authority over naturalization

Powers of Congress: Necessary and Proper Clause

Power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal gov’t

Is the Necessary and Proper Clause an independent source of power?

No, it must always carry into effect another enumerated power.

Powers of Congress: Enforce Civil War Amendments

• 13th Amendment: ban on slavery, Congress regulate purely private conduct

• 14th Amendment: equal protection and due process, pass legislation to enforce equal protection and due process rights

• 15th Amendment: voting, prohibit state/fed gov’t from denying citizen right to vote based on race, color, or previous condition of servitude

Powers of President: Domestic, generally

Power to enforce, but not make the law

power over administrative agencies that enforce the law

power to issue executive orders telling agencies what to do, and can set rule making/enforcement priorities

Powers of President: Pardon

Ability to pardon only federal offenses at any time after commission of an offense. Impeachment crimes and state crimes are not included.

Powers of President: Veto Power

10 days to act on proposed legislation.

Sign = bill becomes law

veto = bill sent back, congress can override by 2/3rd vote in each house

nothing = if Congress in session, bill becomes law. Congress adjourned = pocket veto

Powers of President: Appointment/Removal

Appoints all officers of US (Supreme Court justices, cabinet secretaries) with advice & consent of Senate. May generally remove any executive appointee without cause and without Senate approval.

Powers of President: Commander-in-Chief

Only congress can declare war. President can take military action in case of actual hostilities against US, but congress may limit activities through military appropriation/spending power.

Powers of President: Treaties

Exclusive power to negotiate treaties. Treaties must then be ratified by a 2/3rds vote of senators present. Treaty cannot conflict with constitution and will hold over thru next term of presidency.

Powers of President: Executive Agreements

Power to enter into agreements with foreign nations; no senate approval. Will expire with president’s term.

Congressional Limits: Impeachment

House of Reps may impeach, Senate tries the impeached official, can convict by 2/3rds vote. Consequences include removal from office/DQ from future office, but criminal penalties do not attach.

Appropriation of Funds by Congress

If Congress explicitly mandates expenditure of funds, then the president cannot impound those funds by refusing to spend them. No mandate = president can decide where to spend funds

Legislative Veto

Unconstitutional for Congress to attempt a legislative veto of an executive action

When can Congress delegate its authority?

Congress can delegate some of its authority if it specifies an “intelligible principle” to guide the delegate.

**certain powers non-delegable; impeachment, declare war

Judicial Immunity

judge has absolute immunity from civil liability for damages resulting from judicial acts but does not have immunity regarding nonjudicial activities (eg hiring and firing employees)

Legislative Immunity

members of Congress have absolute immunity from civil or criminal liability for statements made and conduct that occurred in the regular course of the legislative process

Executive Immunity

Immunity from any act performed as part of president’s official responsibilities.

NO IMMUNITY:

• civil action based on alleged conduct before president took office or completely unrelated to presidential office duties

• compliance with a subpoena in federal or state criminal proceedings

• compliance with a congressional subpoena involving personal matters

Federal immunity

• states cannot regulate the federal gov’t except when permitted by congress or when the regulation is not consistent with federal policy

• the federal gov’t and its instrumentalities are immune from taxation by the states except for generally applicable indirect taxes that do not unreasonably burden the federal gov’t

State Immunity from Federal Regulation

Fed gov’t has unlimited power to regulate the states so long as Congress exercises one of its enumerated powers

Congress Enumerated Powers

Article I, Section 8 of Constitution

• power of the purse: taxes, pay debts, borrow money

• regulate commerce: regulate trade w/ foreign nations and between states

• Currency: the power to coin money

• War Powers: The exclusive power to declare war, raise and support armies, and maintain a navy

• Immigration & Bankruptcy: The authority to establish uniform rules for naturalization (citizenship) and bankruptcy

• Elastic Clause: Congress can also make all laws that are "necessary and proper" to execute these enumerated powers

  • not strong enough on its own, needs to be hand in hand with another power

When can Congress regulate states through conditional funding?

if the condition

• is for the general welfare

• is unambiguous

• relates to a federal interest in particular national projects or programs

• does not induce states to act unconstitutionally and

• does not exceed the point at which “pressure turns into compulsion”

Dormant Commerce Clause

Limits the power of states to legislate in ways that impact interstate commerce. If Congress has not enacted legislation in a particular area, states can regulate interstate commerce so long as the regulation does not:

• discriminate against out-of-state commerce

• unduly burden interstate commerce or

• purposefully regulate wholly out of state activity

Discrimination Against Out-of-State Commerce

Generally, state/local gov’t is prohibited from enacting a discriminatory regulation protecting local economic interest except in the rare instance when:

• regulation is necessary to an important state interest

• no nondiscriminatory means are available to achieve that purpose

Undue Burden on Interstate Commerce

nondiscriminatory state regulation may be struct down if it imposes an undue burden on interstate commerce. to determine undue burden, court will:

• balance purpose of the state law against the burden on interstate commerce and

• evaluate whether there is a less restrictive alternative

Market Participant Exception

A state can favor local commerce or discriminate against nonresident commerce if the state is acting as a buyer or seller and not as a market regulator

Traditional Gov’t Function Exception

State and local regulation can favor state and local gov’t (not private) entities if the entities are performing a traditional gov’t function (e.g. waste disposal)

Congressionally Permitted Discrimination

An otherwise impermissible state regulation is valid if it is unmistakably clear Congress intended to permit it

When can a state tax interstate commerce?

Only if Congress has not acted in the particular area and the tax does not discriminate against or unduly burden interstate commerce

When is a state tax of interstate commerce valid?

• substantial nexus between activity being taxed and the taxing state

• tax is fairly apportioned pursuant to a rational formula

• tax does not discriminate (either on face or in effect) so there is no direct commercial advantage to local businesses over interstate competitors

• tax is fairly related to the services provided by the taxing state

Ad Valorem Property Taxes

States can tax movable commodities that are within their borders AND instrumentalities of commerce if instrumentality has a taxable situs or sufficient contacts within the taxing state.

Express Preemption

Constitution makes federal power exclusive or congress has enacted legislation explicitly prohibiting state regulation in the same area

Field Preemption

When Congress’s pervasive regulation shows an intent to occupy the entire field

Conflict Preemption

When it is nearly impossible to comply with both laws or when state/municipal law frustrates the federal law’s purpose

Full Faith and Credit

court must give out of state judgments effect if:

• court rendering judgment had jurisdiction over the parties and subject matter

• judgment was on the merits and

• judgment was final

State Action

Occurs when a private person carries on a traditional gov’t function, which is an activity that is traditionally performed exclusively by the state

May exist if there are sufficient mutual contacts between private entity and gov’t such that gov’t is pervasively intertwined with the entity and:

• const. standards should apply to the private entity

• mutual benefit results

• state creates private entity and retains permanent control

mere licensing not state action. state must affirmatively facilitate, encourage, or authorize the activity.

Due Process Clause of 5th Amendment

Applies to federal gov’t

Due Process Clause of 14th Amendment

applies to states and local gov’ts

Procedural Due Process

Only required when the gov’t acts intentionally and ensures that the necessary procedures are followed before persons (including corporations) can be deprived of life, liberty, or property

What is an individual whose interest is being deprived entitled to?

1. notice of the gov’t action by an unbiased decision maker and

2. opportunity to be heard

Substantive Due Process

Principle that laws should be reasonable and not arbitrary and protect individual freedom

When does substantive due process vs. equal protection issues arise?

Substantive due process: arise when a fundamental right is being infringed for all persons

equal protection: arise when a right is being denied to a particular class of persons

SDP: Strict Scrutiny

If gov’t action infringes a fundamental right then the gov’t has the burden of proving that the law is the least restrictive means to achieve a compelling gov’t interest.

least restrictive = law not over/under inclusive, no less restrictive way to achieve interest

compelling interest = generally understood to be a necessary or crucial interest

SDP: Rational Basis

If gov’t action infringes an ordinary right then the challenger has the burden of proving the law is not rationally related to a legitimate state interest.

Gov’ts stated interest must be any legitimate reason

applies to laws related to lifestyle, taxation, zoning, punitive damages

Travel: Fundamental Right

fundamental right to travel from state to state

durational residency requirements that impinge on interstate travel by denying newcomers “basic necessities of life” are permitted only if state can satisfy strict scrutiny

Vote: Fundamental Right

Every citizen 18+ has fundamental right to vote.

Strict scrutiny applied to severe discriminatory conduct like a poll tax, property ownership req, disallowing 3rd parties. Otherwise, rational basis review.

Privacy: Fundamental Right

• to marry

• to obtain and use contraceptives

• engage in intimate consensual s*xual behavior

• Parents to make decisions regarding care custody and control of their children

• families to live together

• to possess obscene material

• refuse medical treatment

• avoid disclosure of personal medical information

Abortion is not a fundamental right to privacy.

Equal Protection: Strict Scrutiny

applies when the gov’t substantially burdens a fundamental right or intentionally discriminates against a suspect class. Requires the gov’t to prove that its action is lease restrictive means to achieve a compelling gov’t interest.

suspect classes: race, ethnicity, national origin

Equal Protection: Intermediate Scrutiny

Applies when gov’t intentionally discriminates against a quasi-suspect class. Requires the gov’t to prove that its action is substantially related to an important gov’t interest.

quasi-suspect class: gender, legitimacy

Equal Protection: Rational Basis

applies when gov’t action does not impact a fundamental right or discriminate against a suspect or quasi-suspect class. Requires the challenger to prove the law is not rationally related to a legitimate gov’t interest.

Proving Discrimination - strict/intermediate scrutiny

must be discriminatory intent on the part of the gov’t

Facially Discriminatory

language of the law distinguishes between different classes of persons

→ discriminatory intent presumed

Discriminatory Application

a facially neural law is applied differently to a different classes of persons (e.g. state hires only male applicants)

→ purposeful discrimination (e.g. female applicants are equally qualified)

Discriminatory Impact

A law that is neutral on its face and in its application disproportionately impacts a particular class (e.g. six foot heigh req mostly affects female applicants)

→ purposeful discrimination. (e.g. legislative history shows an intent to exclude female applicants)

Nonsuspect Classifications

Commonly include: age, poverty, s*xual orientation

Fundamental Rights Unique to Equal Protection

• one person, one vote: number of persons in each district must be approx. equal

• gerrymandering: may not be drawn using race as predominant factor

Comity Clause / Article IV Privileges & Immunities

Prohibits a state from discriminating against citizens of another state

When can discrimination against out-of-state citizens be vaid?

If the state can show:

• substantial reason for the difference in treatment and

• substantial relationship between discrimination and state’s objective

Takings Clause of 5th Amendment

Provides that private property cannot be taken for public use without just compensation

Property subject to takings clause protection

real property (easement, lien, leasehold, fee simple), tangible personal property, and intangible proper (contract and patent rights, trade secrets)

Types of Takings: Physical

seizure of property, primary challenge is whether owner has received just compensation

may also arise from damage or destruction of property

Types of Takings: Recharacterization

arises when gov’t recharacterizes private property as public property

Types of Takings: Regulatory

constitutes a taking when:

1. it results in a permanent physical occupation of the property by the gov’t or third party or

2. a permanent total loss of the property’s economic value

Types of Takings: Exaction

exacting promises from developer does not violate takings clause if

1. there is an essential nexus between legitimate state interests and the conditions imposed on the property owner and

2. rough proportionality between burden imposed on the property owner and impact of proposed development

Bills of Attainder

Prohibited - legislative act that declares a person or group of person guilty of some crime and punishes them w/o a trial

Ex Post Facto Law

• criminalizes an act that was not a crime when committed

• authorizes a more severe penalty after an act was committed

• deprives a defendant of a defense available when the act was committed or

• decreases the prosecution’s burden of proof below that required when the act was committed

Contracts Clause

bars the state from passing any law “impairing the obligation of contracts”

appies only to state legislation, and does NOT apply to future contracts.

Strict Scrutiny: Religion

when a gov’t program shows preference for one religion over another or for religion over nonreligion, strict scrutiny applies

Financial Aid: Religion

Aid to religious institutions is permitted if the aid is:

• secular in nature

• used only for secular purposes and

• distributed according to religiously neutral criteria

vouchers are typically valid if parents can decide to use them at religious or non religious schools

Invalid Public School Activities: Religion

• prayer/bible reading

• period of silence for meditation or voluntary prayer lacking any secular purpose

• nondenominational prayers at school events

• posting 10 commandments on public school walls

• prohibiting teaching of Darwinism

Valid Public School Activities: Religion

• voluntary, individual prayer by students

• bible reading, if treated as literature or poetry

• football coach lending private prayer at halftime of FB game

• teaching ten commandments as example of early legal code

Religious Displays

Display of Ten Commandments is not allowed if it has predominantly religious purpose. Gov’t holiday displays generally permissible as an acknowledgement—not endorsement—of religion

Legislative prayer

generally permissible bc of long history of tradition of such prayers

Free Exercise Clause

freedom to believe and the freedom to act

Religious Belief

Freedom to believe in any religion/none at all is absolutely protected and cannot be restricted by law

Religious Conduct: level of scrutiny

intentionally target = strict scrutiny

neutral laws general applicability that have an impact on religious conduct = rational basis

Expressive Conduct

subject to lesser degree of protection than traditional speech. regulation upheld if

• regulation is within gov’ts power

• further important gov’t interest

• unrelated to the suppression of ideas and

• burden on speech is no greater than necessary