Constitutional Law
Constitutional Law
1: Powers
A) Judicial Power
1- Source of power (Art 3)
2- Limitation
1. Jrx
2. Cong
3. AIS
4. Justiciability
1- Standing
( Other Standings?
2- Ripeness
3- Mootness
4- Political Question
5- Advisory Opinion
6- Abstention
5. 11th Amend (state immunity against private suit in fed court)
1 Legislative Power (Fed Law)
1. Opening Statement
2. Spending Power issue?
3. Commerce Power issue?
1. Definition / 3 part
2. Substantive $ effect
3. Local activity argument
4. Non- $ argumnt/ pilling ..
5. Quintessentially $
4. 10th Amend? (State police power; 3 part military language)
5. 11th Amend? (State immunity against private suit in fed court)
B) State Law
1. Dormant Commerce Clause
1. Definition
2. is it Discriminatory on its face?
1. Compelling reason?
2. non discrim means exists?
3. is it Unduly Burdensome?
4. Exception applies?
2. Privilege & Immunity Clause
1. Definition (Art 4, Sec 2)
2. is it fundamental interest?
3. is there a substantial reason?
4. is it narrowly tailored?
3. Preemption
- Conflict preemption, field preemption or supplements?
4. 21st Amend issue?
5. Valid under Contract clause?
C) Executive Power
- Chief executive power / 3 ebbs
- Separation of Power Doctrine
D) Taking Clause
1. Complete Definition
2. Public use?
3. is there a taking (5 step)
4. Remedies & measure of $
1- Source of Power
The federal government is a government of limited powers, which means that for federal action to be legitimate, it must be authorized by the constitution. The constitution authorized a “federal court system” in Art 3, which provides that federal courts shall have jurisdictional power over all “cases and controversies” involving the constitution, laws, and treaties of the United States.
The constitution does not explicitly provide that the Supreme Court may review and determine the constitutionality of acts of other branches of government; however, this power was established in Marbury v. Madison, under which the court held that the constitution is the fundamental law and it is emphatically the province and duty of the judiciary to declare what the law is; thus the Supreme Court has the power to interpret the law and declare whether acts of other branches of government are constitutional or not.
• Separation of powers doctrine prohibits the legislature from interfering with the court’s final judgment. Court has to be the last and final branch to say what the law is.
MBE: if a law is passed and says that an executive officer can override the decision of the court, the statute is unconstitutional b/c in that scheme the court is reduced to give advisory opinion since the real decision maker in this example is executive officer and not the court.
Review of State Act
Supreme Court established the Federal judiciary power to review acts of state when it involves federal law in Martin v. Hunter’s lessee. Court held that “to preserve uniformity in the interpretation of federal law, the Court has the power to review state court’s decisions involving federal law”. Thus The Supreme Court will not review state court’s decision only if there is an AISG. Additionally, under Supremacy Clause of article 4, the constitution, laws and treaties of the United States prevail over conflicting state law.
- Reviewing State’s decisions may raise the “AISG, and 11th amend issues (11th: private cannot sue a state in federal court)
2- Limits
1. Jurisdictional Limits
Article 3, section 2 divides the jurisdiction of the Supreme Court into original and appellate.
1- Original (Trial) jurisdiction:
The Supreme Court has original jurisdiction in 1-all cases affecting ambassadors, other public ministers, consuls and 2-those in which a state shall be a party. Congress may neither enlarge nor restrict the Supreme Court’s original jurisdiction
• Congress may neither add to nor restrict the Supreme Court’s original jurisdiction, but congress may give concurrent jurisdiction to lower federal courts in all cases except those between states.
• The SC has non-exclusive original jurisdiction in all controversies between the US and a state. However, a state may not sue the US unless Congress passes legislation permitting it. States may sue other states w/o Congress’ consent and the SC has original jurisdiction.
2- Appellate jurisdiction
The Supreme Court has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulations.
• Congress has provided two methods for invoking Supreme Court appellate jurisdiction:
1- Writ of Certiorari: most cases
The Supreme Court has complete discretion to hear cases that come to it by writ of certiorari. A case will be heard if 4 justices agree to hear it; they are:
1) Cases from state courts where: 1-constitutionality of a federal statute, federal treaty, or state statute is in issue; or 2-a state statute allegedly violates fed law.
2) All cases from federal courts of appeal
2- Appeal (Mandatory)
The Court must hear those cases that come to it by appeal. Appeal is available only as to decisions made by 3 judge fed district court panels that grant or deny injunctive relief
2. Congressional Limits
Under the “Exception and Regulations” clause of article 3 section 2, congress may validly regulate or limit the appellate jurisdiction of the Supreme Court. Also, under Ex parte McCardle, congress may eliminate certain avenues of Supreme Court’s review so long as it does not eliminate all avenues.
• If congress were to deny all Supreme Court review of an alleged violation of constitutional right, or deny a hearing before any federal judge on such a claim, this would violate the Due Process of law
• Congress cannot use its exception power to make particular cases to come out in a particular way, i.e., congress cannot say that the supreme court has appellant jurisdiction over environmental law but it may not decide any issues in those cases relating to the 4th amendment. Such act is 1- invading the judicial providence of court in deciding cases; 2- it steers the court to a particular outcome - violation of separation of power principals. The restriction is also unconstitutional if it violates individual rights, i.e., blacks can’t sue.
• The scope of congress’ exception power is broad and even congress can withdraw cases from Supreme Court’s appellant jurisdiction, but it has to be neutral withdrawal of the whole classes of cases, and not particular issue in a case or attempt to produce a particular outcomes in particular case
• Congress cannot use its exceptions power to interfere with the fundamental role and special function of the court – separation of power issue
3. Adequate & Independent State Grounds Doctrine - AISG
Doctrine of Adequate and Independent state ground holds that issues of federal law resolved by state courts will not be reviewed by the Supreme Court if the state court’s judgment rests on adequate and independent state ground. If a state court issues a decision on two alternative grounds, one Federal and one State law, the Supreme Court lacks jurisdiction to review the case (state substantive law applies – Erie, and reversal of federal issue will not affect the case.) On the other hand, if a state court rests its decision on both State and Federal law and it is not clear whether the state court relied on adequate and independent state grounds for its decision, SC has jurisdiction to review the case (the need for uniformity in interpretation of federal law mandates the assertion of federal court.) To demonstrate that adequate and independent state grounds exists, under Michigan v. Long, the state court must make a “plain statement” indicating that federal cases were used only for the purpose of guidance and nothing more.
3 propositions:
1. Supreme Court cannot review matters that are purely a matter of state law: i.e., state contract law, state constitution, state tort law, state family law, etc
i.e., In year 1 USSC ruled that school financing based on school local property taxes does not violate equal protection. In year 2 a State Supreme Court ruled that it does violate the state’s Equal Protection Clause. Can SC reverse the state’s judgment? NO, the meaning of state constitution is a question of state law
2. Supreme Court will not review a state court decision if state courts’ decision rests on two alternative state and federal grounds; that’s because state substantive law applies (i.e., state 4th amend search and seizure v. Fed 4th amend search and seizure) and even the reversal of federal law will not change the out come; court does no give advisory opinion
MBE: This means that 1- When federal claimant wins on both state and federal grounds on substantive law, under Erie doctrine state substantive law applies and federal ground becomes immaterial, thus SC lacks jrx; 2-but when federal claimant wins on both state and federal grounds on a procedural issue (i.e., statute of limitation) procedural rule of federal law applies and thus it can change the outcome, thus the Supreme court can review the state case if there is a procedural issue
( Substantive law is a double winner rule b/c once the claimant wins on a substantive issue, he wins again since court will not review case while Procedural law is a double loser’s rule b/c once claimant loses on a procedural issue, he loses again since court will get to review the case
• State criminal ( claims illegal search and seizure under both the state and federal constitution. State court rules in favor of the ( on both grounds. SC will not review the case; SC cannot review the federal 4th amendment claim b/c it does not affect the outcome: search and seizure is a substantive law.
- Once the evidence is suppressed under state law, it is suppressed for good – it does matter whether it would be suppressed under federal 4th amendment or not
- Federal rights are floor but not a sealing: rights cannot go lower than federal floor; but state can always give you more protection and federal claimant gets the highest protection between state and federal
- If the state is giving you less 4th amend protection or other rights that the federal constitution requires, then the state is violating your federal rights. But state can always give you more – so if the state law gives you more search and seizure protection than federal constitution requires, that is non of federal government’s business
• ( is beat by cops and bring a state claim and a federal claim. ( wins on both state and federal ground and cops want to appeal the federal claim. the SC will not grant review b/c the ( would still win based on the state law ground of decision b/c state courts have the final say on pure state law issue. Anything SC says will be an advisory opinion
• A group brings 2 suits based on state and federal claims. They win and get injunction based on both grounds. The ( will not be able to appeal to SC b/c even if the federal ground was overturned, the court is bound to apply state substantive law and ( gets the injunction anyways.
• X contends that a state Y statute is unconstitutional under the state Y and U.S. Constitution. If the highest state Y court holds in favor of Y on both grounds, X may appeal the decision to the Supreme Court. Reversal of the federal question would change the ultimate outcome (i.e., the state statue would be invalid
• X asserts a claim against Y in a state Z court based on 1-state Z common law, and 2-federal statute. If the court rules that both claims are invalid, X can appeal (i.e., a reversal of the federal claim would result in X having a valid action)
3. Unclear basis: Supreme Court will review a state court decision if state court’s decision rests on both state and federal law and it is not clear whether state relied on AISG in reaching its decision.
• To demonstrate that adequate and independent state grounds exists, under Michigan v. Long, the state court must make a “plain statement” indicating that federal cases were used only for the purpose of guidance and nothing more.
• When it is unclear whether the state court decision turned on federal or state law or both, the SC can review the federal question
- If SC agrees with state court’s holding (even it was on unclear base), SC affirms it. But if SC reaches different result under federal law than state decision, then SC will remand it back to state court for clarification and cannot rule on it b/c it was unclear whether state court ruled on state or federal ground: the question is still on table and SC cannot answer that question, must go back and state answer that question- i.e., state held the search is not ok and didn’t clear on whose bases; SC reviews it; SC held search is ok under federal law. So the right answer is “if the search is ok with us, we remand the case for determination of state law”
I
Independent state grounds: state law must not depend on federal law
• i.e., FL state constitution says we prohibit exactly the same searches and seizure that the4th Amendment prohibits, i.e., if the search is legal for the Feds, it is legal for us: Here, every question of FL state search and seizure law would also be a federal search and seizure law b/c state ground is not independent of federal law and thus SC can review FL state’s search and seizure cases
4. Justiciability
Whether a case is justiciable and the court may hear it depends on whether case or controversy is involved, and whether other prudential limitations are present. Case or controversy is defined as a definite and concrete dispute, which touches the legal relations of parties having adverse interests and which can be resolved by a judicial decree of a conclusive character. The doctrine of justiciability addresses 1-Standing, 2-Ripeness, 3-Mootness, 4-Political Question, and 5-prohibition against Advisory Opinion.
← Some of these matters, such as constitutional standing, are derived from constitutional text where a real case and controversy must exist. Other issues of justiciability, such as political question doctrine are prudential limitations that are imposed by the court itself. However, unlike issues dealing with constitutional standing, prudential requirement are subject to congressional override.
• In every con law question, Standing and Ripeness must be discussed; then if there is Political Question issue talk about it otherwise don’t go further.
1- Standing
The SC will not decide a constitutional challenge to a government action unless the party who is challenging the government action has standing to raise the constitutional issue. In order for ( to have standing to sue, he must show 1- injury in fact, 2-caused by the government, and 3- injury will be remedied by a decision in her favor
1- Injury in Fact
Injury in fact requires an actual, personal, and concrete harm or the immediate threat of harm to the (. It cannot be illusory or a generalized grievance and it does not need to be economical.
It must be a real harm or injury and not a generalized grievance. It can be any kind of injury as long as it is not illusory or remote.
Argument framework:
1: Environmental harms is real injury US v. SCRAP
2: Aesthetic or recreational harm is real injury: Sierra Club v. Morton
3:Scenic view damages are too remote: Lujan v. defenders of wildlife
4:(s communist party’s freedom of association is infringed: injury
5:(s seeking injunctive or declaratory relief must show substantial likelihood of future harm (Lyons case) Lyons brought suit for black people in LA that were killed by choke holds from cops. Lyons lacked standing for injunctive relief b/c he failed to show that there is substantial likelihood that he would be choked again, but he had standing for damages – discuss standing for both damages and injunction
• Raines v. Byrd: members of congress have no standing as legislator to challenge a law (Line Item Veto Act) that is properly enacted and which she or he thinks is unconstitutional. Because the legislator has not personally suffered a particularized and concrete harm, he or she lacks standing to sue.
• Elk v Newdow: A litigant-divorced parent who has no legal control over his child’s education has no prudential standing to bring suit on behalf of his child
• MBE Tip: which of the following (s has the best standing? Choose the answer for ( who has personally suffered injury. If more than one, choose the ( who has suffered a monetary or economic loss
2- Causation
(’s injury must be fairly traceable to the challenged conduct of the government and not be attributable to some independent cause.
• The injury must be one that is caused by government’s act, statute or policy.
Argument framework:
1- But for ( conduct, (’s injury would not have happened. Additionally because it is reasonably foreseeable that (’ conduct would result in such injury, (’s conduct is the legal cause of (’s injury
2- However, Just like Worth v. Seldin, where court found (s inability to live in the town was attributable to economic and market forces rather than government’s action”, here economic and market force might be viewed as an unforeseeable intervening cause which supersedes and breaks government’s chain of causation and relieves the ( of liability.
• Utah v Evans: Whether getting injunction against the commerce department to redo the censer and re-count would take care of harm that Utah alleged, i.e., getting their lost sit in the house of representatives: 1- Majority held that there is redress-ability; getting the censor bureau to change its count makes it substantially likely that the president and other executive officials would abide by this new count and change the representation. 2- not redress-able b/c relief was conditioned upon an acceptance of the revised censer’s report by third parties i.e., the president and congress who are not even before the court.
3- Redressability
An injury is redress-able only if a ruling in litigant’s favor would result in termination of her grievance.
• If a court order declaring a government action to be illegal or unconstitutional (and ending that government action) would not eliminate the harm to the litigant, then that individual does not have the type of specific injury that would grant him standing to challenge the government action.
• Supreme Court has held that mothers do not have standing to challenge the government’s refusal to enforce criminal laws that would require the father of their children to pay child support. Here (’s injury is not redress-able b/c a ruling in her favor (i.e., the enforcement of the criminal law against a father who is guilty of nonsupport) would not necessarily result in termination of her grievance (i.e., the father’s providing support to the mother) (Ruling in (s favor to punish the fathers does not mean money, support to mother- then give the other side of the argument: “on the other hand enforcement of criminal statute may give incentive to provide support”)
• Indigents have no standing to challenge an IRS policy that allows hospitals to receive favorable tax. The indigents could not demonstrate that a different IRS policy would cause hospitals to provide them with free care.
• Allen v Right: Minority parents lacked standing to sue IRS who were claiming that IRS’s favorable tax treatment to schools that were discriminating by race, prevented them from having an integrated public school. Their harm was not redress-able because a ruling in her favor (i.e., withdrawing tax treatments) would not necessarily result in termination of her grievance (i.e., having integrated public school.)
Common Issues of Standing:
1) Congressional Standing
Congress does not have the power to grant standing to someone who has not suffered actual injury. That’s because the case and controversy requirement is constitutionally mandated. However, congress may confer statutory standing to a ( to enforce a federal statute if she or he
1- has suffered injury in fact &
2- if she is within the “zone of interests” that congress meant to protect.
• Congress passes a law prohibiting kite flying on Sunday. The law provides that anyone who disagrees with it may challenge the law in the federal district court for District of Columbia. This grant of congressional standing to “anyone,” violates the case or controversy requirement since it purports to grant standing to persons who have not suffered an “injury in fact”. Of course, one arrested for flying a kite on Sundays would have standing.
• Congress passed a law requiring political committees to disclose to voters certain information and provides that anyone who believes that the law has been violated may file a complaint with the Federal Election Commission (FEC). This statute is sufficient to give any voter standing. Although the injury from a failure to disclose is widely shared, it is sufficiently concrete: the law gives voters a right to information, and any voter denied such information has suffered an actual, personal & concrete injury.
• Persons who sold date processing service to private business had standing to challenge a ruling that allowed the date to be available to other banks and bank customers. These (s has an injury in fact b/c the ruling would hurt their future profits. (Threat of immediate harm is sufficient to have standing.) The ( were determined to be within the zone of interests protected by the federal statutes (if congress intended the statute to protect a group of persons, it intended to allow private persons within that group to bring federal actions to enforce the statute, and thus in such circumstances the courts are generally liberal and lenient to granting standing)
2) 3rd Party Standing – Raising the rights of others – important *
Generally, a litigant lacks standing to raise the rights of 3rd parties not before the court. However, a ( may raise the rights of third party if
1- the claimant himself has personally suffered injury, and
2- a special relationship exists between the claimant and the third party, and
3- the third party is unlikely to be able to assert her own rights
• Doctor has standing to bring action on behalf of patients who were not permitted to get abortion
• Craig v Boren: a vendor of beer has standing to raise the rights of males under 21 in attacking a state law prohibiting sale of beer to them but not to females under 21
• NAACP was permitted to raise the right of freedom of association of its members, in a suit to require disclosure of membership list, because the issue of the confidentiality of membership could not be raised by the members themselves without destroying that confidentiality.
• Criminal (’s have 3rd party standing to raise the rights of prospective jurors to be free from discrimination in jury selection.
3) No Citizen Standing
People have no standing merely as “citizens” to claim that government action violates federal law or the constitution since as such injuries are illusory or amount to mere generalized grievance. (( cannot sue solely as citizen to have the government follow the law)
• Lujan v. Defenders of Wild Life Congress cannot grant citizens standing by adopting a statute that would allow persons who otherwise have no direct, personal and concrete injury to sue merely to force the government to observe the constitution or federal law.
• MBE: Question will flag this issue by saying that ( is suing as “citizen” or “taxpayer”: just because many people are injured does not mean that people can sue as citizens or taxpayers: these are still generalized grievance – there is no personal, direct and concrete injury to claimant himself
4) Associational Standing – Raising the rights of a group – important *
An organization has standing to raise the rights of its members if
1- The members would otherwise have standing to sue in their own right
2- The interests asserted is germane (related) to the associations’ purpose
3- Neither the claim asserted nor the relief sought would require the individual participation of the members in the lawsuit
• Anytime you have a group, organization, club or any kind of group of people bringing suit, you must discuss associational standing after general standing issue.
• The All Dentist Associations (ADA) is composed entirely of dentists; its purpose is to promote the professional well being of dentists. Assume that most ADA members make between $100K to $200K. The ADA would not have standing to challenge a change in the federal income tax rates that will disadvantage all persons making between $100K and $200K on the basis that the statute deprives all persons (in the income category) of property without Due Process, because that claim is not related to the organization’s purpose – the representation of dentists as such. But the ADA probably could bring a lawsuit challenging a state regulation of dental practices if the regulation injures ADA members, as long as the injury to members does not vary.
• Apple growers associations validly challenged, on behalf of its apple grower’s member, a state law that discriminated against out of state apple. (germane to purpose)
• Only the first element of the above 3-part test is constitutionally required. Thus, congress can adopt a statute giving organizations standing even though the nature of the claim asserted or the relief sough would require participation of the individual members in the lawsuit.
• An organization also has standing to challenge an action that causes injury to the organization itself. (Ordinary standing)
• Whenever you have a “club” or Xs or more than one ( is suing, you must raise associational standing issue after your ordinary standing.
5) Taxpayer Standing
Generally a taxpayer has no standing to challenge government expenditures because the taxpayer’s interest is too remote. However, under Flast v. Cohen, a federal taxpayer has standing if
1- he is challenging a congressional exercise of power under the taxing and spending clause, and
2- the challenged action exceeds specific constitutional limitations: the only limit that the Supreme Court has found on the taxing and spending power is the First amendment Establishment Clause.
• Taxpayers standing is extremely narrow: it only allows standing to challenge expenditure or tax treatments to religious organization
• For taxpayer to have standing, the taxing or spending power must be involved. Thus there is no standing to challenge federal government’s grant of property to religious groups (that is congress’s property power) Valley Forge.
• US. V Richardson: Taxpayer was denied standing to challenge expenditure to CIA. There is no specific constitutional limitation on congress’s spending power except to religious organizations (1st Amendment Establishment Clause: government can neither advance nor inhabit religion in its principal effect, and cannot foster excess entanglement with religion)
• ( cannot sue merely as a citizen or as a taxpayer in having the government follow the law. People have no standing merely as “citizens” or “Taxpayers” to claim that government action violates federal law or the constitution
2- Ripeness – immediate threat of harm
Under the Doctrine of Ripeness, federal court avoids a premature adjudication of constitutional issue. In other word, a federal court will not hear a case unless 1-the ( has been harm or 2-there is a sufficiently real and immediate threat of harm.
( Ripeness Facts will indicate that a statute was just passed, regulation was lunched, law became into effect, or the law was not yet enforced, or there is no real and imminent threat of enforcement
• Generally a party is not entitled to review of a statute or regulation before it is enforced unless there is a substantial and imminent threat of irreparable harm. Also court will balance the equitable interests of parties before granting injunction
( If the statute has never been enforced and there is no real and immediate threat that it will be, the case is not ripe and federal court will no hear it. (Pre-enforcement review is dismissed for not being ripe)
• MBE v Essay Tip: whenever the court is asked to grant declaratory judgment, there will be ripeness issue to discuss for both sides and then balancing the hardships argument i.e., FDA case. On MBE pre-enforcement review is flatly dismissed for not being ripe (anti-contraceptive case: no pre-enforcement review, otherwise it will be an advisory opinion)
• Essay argument: even if there is no real and immediate danger of enforcement and the case is not ripe, ( may argue that here the remedy sought is equitable remedy and court should consider and balance the
1- Equitable interest of the parties, hardship, gravity and magnitude of the harm to ( if relief is not grated, against gravity and magnitude of harm to ( if relief is granted
2- The fitness of the issues and the record for judicial review. the court has to determine if it has everything that it needs to decide the issue.
• A case may be unripe as to one issue i.e., injunctive relief, but ripe as to another issue, i.e., damages (i.e., Lyons case)
• Remember! Case must always be ripe for court to hear it – ripeness is always an issue, raise it anyways
3- Mootness
Under the Doctrine of Mootness, a real and live controversy must exist at all stages of litigation, including appeal. If the controversy is resolved by the happening of the events, the case will be dismissed as moot.
• When the happening of events ends (’s injury, the case is dismissed as moot (De Funis v. Odegaard). That is because the controversy is ceased to be “definite and concrete and no longer touches the legal relations of the parties having adverse legal interest”
Exceptions:
1- Injuries Capable of Repetition Yet Evading Review
A controversy will not be rendered moot when there is a reasonable expectation that it is capable of repetition, yet evading review
• Issues concerning events of short duration: i.e., pregnancy, election, residency, divorce
2- Class Action
A class action will not be dismissed as long as one member of the class has an on going and live controversy.
3- ( Voluntarily agrees to stop
When ( voluntarily agrees to stop the offending practice but is legally free to resume it (Sham moot), the case will not be dismissed as moot.
• If it is a voluntary settlement, the case will become moot since ( cannot legally resume it.
4- Collateral Legal Consequence
Under Collateral Legal Consequence rule, even if the principal issue in the lawsuit may have been resoled, nevertheless the case is not rendered moot if is a collateral issue to be resolved. (i.e., injunctive relief v. damages)
• Powell had regained his seat in congress at the time the case got to SC, but the case was not moot b/c the issue of damages for back pay was still unresolved. (Case may become moot as to one issue, i.e., injunctive relief but not to another i.e., damage)
← Ripeness bars consideration of claims before they have been developed; Mootness bars consideration after they have been resolved.
4- Political Question Doctrine
Political question doctrine refers to matters that are inappropriate for judicial review and are best left to be worked out by other branches of government. They include matters that are:
1- “Textually committed by the constitution to a coordinate political department”, or there is
2- “There is a lack of judicially discoverable and manageable standards for resolving it”, or
3- “The impossibility of deciding without an initial policy determination of clearly non-judicial kind
4- “The impossibility of deciding without expressing respect due to coordinate branches of government”
5- The risk of embarrassment for multifarious pronouncement by various departments on one question
PQ i.e.,
- Republican form of government clause of art 4 (standard-less)
- President’s foreign affairs
- Impeachment and removal process (Nixon case)
- Democratic National Convention, questions relating to which group of delegates should be seated at the National Convention (the convention itself should decide it, not court)
- Congressional process for ratifying constitutional amendments
- Qualifications of congressional membership with respect to age, residency and citizenship. If congress expels a member based on other grounds such as arbitrary exclusion, court can hear it (Powel)
- Standard-less, beyond court’s competence, lack of judiciary discoverable and manageable standard for review, court lacks expertise: i.e., military trainings,
Non PQ i.e.,
• Legislative apportionment, one person one vote
• Congressional membership: an arbitrary exclusion of delegated is not political question
• Presidential papers and communications: these are generally considered to be privileged and protected against disclosure in the exercise of the executive power. But where these documents are necessary to the continuation of criminal proceeding, the question of production is justiciable and not political (US . Nixon)
5- No Advisory Opinion
There must be specific present harm or threat of specific future harm. Federal court will not render a decision in collusive suits, or cases involving challenges to governmental legislation or policy whose enforcement is neither actual nor threatened.
• SC will not give advisory opinion. It is advisory opinion when court’s decision is not binding, i.e., evaluating the constitutionality of some proposed action, or where court is reduced to make proposal and some other branch gets to say the final word or is not bound if didn’t like court’s decision.
• The prohibition against advisory opinion does not preclude federal courts from granting declaratory relief. Federal court can hear actions for declaratory relief if there is an actual dispute between the parties having adverse legal interest. In order for court to grant declaratory relief, ( must show a real and immediate danger to his interest. The legal question may not be too abstract or hypothetical.
• Federal court will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.
• State court can give advisory opinion
6- Abstention (Federal Courts may not enjoin pending state court proceedings)
When a federal constitutional claim is premised on an unsettled question of state law, the federal court should temporarily abstain so as to give state courts a chance to settle the underlying state law question and thus potentially avoid needless resolution of a federal constitutional issue
• Unsettled Questions of State Law – A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.
• Federal Courts will not enjoin pending state court criminal proceedings except in cases of proven harassment or prosecutions taken in bad faith.
5. 11th Amendment Limits
The 11th Amendment prohibits a federal court from hearing claims brought by a private party against a state government. However, 11th amend does NOT bar
1- Actions brought by Federal government or another state, or
2- Actions brought by private party against:
1- Local government, county, municipality, city, or
2- State officers when the damages are the compensation of past damages and they will be paid out of officer’s own pocket.
• State officers can be sued in federal court for injunctive relief. State officers may also be sued in federal court for damages if the damages are 1-compensation of past damages, and 2-are paid out of officer’s own pockets
← State officer can be sued only either the state will be paying future damages, or the official is paying past damages. State officers cannot be sued to get damages form state treasury for past misconducts.
← There is no problem if the suit requires the state to pay future payments or damages. A federal court may hear an action for damages against a state officer that the damages are to be paid out of state treasury only if the damages are future damages
i.e., ( sues state commissioner of the department of public welfare for failing to comply with federal welfare regulations. The federal court can order future compliance with the federal regulation, even if this will result in cosign the state a large amount of money in the future. However, the federal court cannot award back payments of amounts previously improperly withheld, b/c the order would require payment from state treasury for retroactive relief. (Past damages can never be paid from state treasury)
( DMV, UC State University, state Hospitals and Facilities are part of state. They traditionally and exclusively perform a state function, and since they are parts of state, 11th amend applies and they cannot be sued in fed court if the retroactive damages are to be paid from state treasury.
• Sovereign Immunity Doctrine prohibits a state court from hearing claims brought by a private party against a state, even on federal claims without its consent.
• Usually fact patterns dealing with judiciary power has a 11th Amendment issue to discuss. Make sure to discuss this at the end and after standing, Mootness and other procedural issues
( Exam Tip: DMV, UC, state Hospitals or Facilities, State Officer or Commissioner, or any other government entity, raises 11th amend discussion – even when a local city, county or municipality is being sued, you must raise 11th amendment and say that “however 11th amend does not bar a suit against local government or state officer if damages are past damages and paid from officer’s pocket.
Exceptions to 11th Amendment:
A state may be sued in federal court by a private party if 1-a state expressly consents, or 2- congress removes the immunity under 14th amendment with an express and unmistakably clear language.
• A state may expressly consent to a suit in a Federal Court. A state may only waive its 11th amendment immunity expressly and unequivocally, or by voluntarily invoking a federal court’s jurisdiction such as by its removal of a state law claim from state to federal court, i.e., removal jurisdiction
• A state will not be held to have impliedly or constructively waived its immunity simply b/c congress provides that a state will be subject to private suit if it engages in certain federally regulated conduct such as infringing a federally granted patent
• Congress can remove the state’s 11th amendment protection only under its power to prevent discrimination under the Fourteenth Amendment with an express and unmistakably clear language. I.e., 1-the equal pay act, based on the Fourteenth Amendment, can serve as a basis for federal suits against a state by its employees, i.e., 2-damages action under civil rights statute,
( Two requirements:
1: Must be to enforce the provisions of the 14th amd.
2: Must be w express language
o Congress cannot authorize suits against states under any other constitutional provisions, i.e., congress has no power to abrogate state immunity under the commerce clause, patent clause, war, postal, tax, etc
o Language such as “any” is not enough to remove this immunity. Congress’ language much be unmistaken-ably clear and expressly provide that state can be sued in Fed Crt
Legislative Power
A. Source of Powers
➢ 16 power
← Regulating by spending power?
← Commerce Framework
B. Limitations on Congress’s Power
1- Federalism –state protections
1. 10th amendment
2. 11th amendment
2- Individual rights (2nd semester)
C. Delegation of Legislative Power
D. The Speech or Debate Clause –Immunity of federal legislators
E. Congressional “Veto” of Executive Actions is Invalid
• Hierarchy of US Law:
1st: U.S. Constitution,
2nd: Treaties and federal statutes (if there is a conflict, last in time prevails),
3rd: Executive agreements,
4th: State law
• MBE Tip: There is no general federal police power for congress: what is congress’ power to adopt a particular law? Remember that congress does not have a general police power - on MBE if an answer says that congress is adopting a law for general welfare, that is wrong answer (police power is only for states) unless
1- Congress is taxing or spending for general welfare, or
2- Congress has police power if it is legislating over its own fed power: Military, Indian reservations, Federal land and territories, or for the District of Columbia. (Pneumonic: MILD police power)
• In other word, there is no general federal police power because the police power is reserved for the states. For Congress to have the authority to act, there must be an express or implied Congressional Power to Act. The only situations where Congress has the Police power are: Military matters, Indian reservation Federal Lands or Powers vested in Congress such as Necessary and Proper Clause, Tax/Spending Power, or Commerce Clause
Legislative Power
Opening statement
The federal government is a government of limited powers, which means that for federal action to be legitimate, it must be authorized by the constitution. The constitution grants congress a number of specific powers, many of which are enumerated in Article 1 section 8, plus all auxiliary powers necessary and proper for carrying into execution those enumerated powers. (Now analyze which power is at issue)
Necessary and Proper “Clause”
Under The Necessary and Proper Clause, congress may enact all laws that are necessary and proper to carry out powers that are vested in Fed government.
• Congress may use any means not prohibited by the constitution to carryout its authority. Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
• Just like McCulloch v Maryland that “Congress has the power to charter banks since it is appropriate and necessary for executing its taxing and commerce power” here, X, may be proper and necessary for carrying out congress’s Y power.
• Additionally, Chief justice Marshall announced in McCulloch v Maryland that although legislative power is enumerated and limited, congress’s power is supreme within its sphere of action, and broad construction must be given to the necessary and proper clause.
• MBE Tip: The N & P clause standing alone cannot support federal action on its own. It must work in conjunction with another federal power. Thus, an answer choice that states that a law is supported by the necessary and proper clause (or is valid under congress’s power to enact legislation necessary and proper) is incorrect unless another federal power is linked to it in the question.
• Limitation: congress cannot adopt a law that is expressly prohibited by another provision of the constitution, i.e., congress passes a law that says “nobody can speak in interstate bus traveling” even its is regulating under its commerce power, it is invalid b/c violates 1st amend free speech clause
Taxing Power
Under Article 1 section 8, congress has the power to tax for the general welfare. Tax regulations are valid so long as they are 1-uniform, and that the tax either 1-bears a reasonable relationship to revenue production, or 2-congress has the power to regulate the activity taxed. However, neither congress nor the states may tax exports to foreign countries. (Exporting to foreign countries must always be free of charge)
• Revenue raising v regulatory in nature: if congress has the power to regulate the activity (i.e., commerce), then tax is valid even if it is for regulatory purpose. If congress has no power to regulate the activity i.e., pure local non-economic activity such as mere possession of gun or gender motivation violence, then tax must bear a reasonable relationship to revenue raising (almost anything qualifies; very low threshold)
• Uniform limitation: uniformity means geographic uniformity (while tax structure may not discriminate among the states, it does not have to be uniform as applied to particular individuals) i.e., what congress has properly selected for taxation must be identically taxed in every state where it is found. As long as the tax is geographically uniform, it will be sustained even though it is not intrinsically uniform (i.e., different tax rate) i.e., the court sustained progressive rates of inheritance tax among the states.
• Expert tax limitation: no tax or duty shall be laid on articles exported from any state.
• So long as it raises revenue, it will be upheld: court upheld as revenue raising a discriminatory tax on colored oleomargarine even though congress did not have the power to regulate its production directly. Although a tax on bookmaking activities had a regulatory effect, it was upheld as producing revenue; even taxing drug dealers is valid b/c it raises revenue
Spending Power
Under article 1 section 8, congress has the power to spend for the general welfare i.e., to provide for common defense, or any public purpose. Additionally, Congress may validly use its tax and spending power to “regulate” areas where otherwise it could not regulate so long as congress is inducing and not coercing the states to comply with its specific conditions i.e., imposing conditions on grant of funds: the conditions imposed must be reasonably and rationally related to the activity regulated and that congress must do so with a clear and unambiguous language. (Also there is 10th amendment issue to argue, infra)
← i.e., South Dakota v. Dole, congress passed a law aimed at forcing states to comply with a 21 year old minimum drinking age: valid use of the congressional spending power. The means it chose to address this dangerous situation were reasonably calculated to advance the general welfare.
← Congress conditioned further grants of highway funds upon resignation of state highway administrator who was also state Democratic Party chairman: valid
← The Federal Election Campaign Act, which limited the amount a candidate could spend if he or she accepted money from the federal government, is a valid exercise of the power to spend for the “general welfare”
MBE: again it is wrong to say that congress can adopt laws for the general welfare b/c congress does not have general police power. However general welfare can be the right answer only in those few areas where 1-congress has enumerated powers, i.e., taxing, spending and commerce power or 2-when legislating for Federal matters such as Military, Indian reservations, Federal Land, or District of Colombia (MILD)
Commerce Power (Fed §)
Framework:
1- Give Complete Definition
2- Define “substantial economic activity is determined by..
3-Local Activity argument
1. Wickard v. Filburn
2. Hart of Atlanta v U.S
4- Non economic criminal argument
1. US. v Lopez
2. U.S v Morrison
5- However, “quintessentially economic” – Gonzales v. Raich
1-Definition: Under Article 1 section 8, congress has the power to regulate commerce 1-with foreign nations, and
2-among the several states, and
3-with the Indian tribes (Define commerce) Commerce, as defined by chief justice Marshal in Gibbons v. Ogden, is “every commercial intercourse which concerns more state than one”. This plenary power, although very broad, is not without limits. To be within congress’s commerce power, the federal law must either:
1- Regulate the channels of interstate commerce
i.e., Highways, waterways, air traffic, mail, road, Internet, phone
2- Regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
i.e., cars, trucks ships, airplane, electricity, stock, insurance, cattle, people, commodity, any transmission across state line, gas, smoke, TV, radio transmissions, e-mail, interstate transport of liquor for personal consumption- going to Vegas for weekend with jack Daniel in trunk, taking a girl to Vegas for a weekend, anything that crosses a state line will do
3- Regulate activities that have a substantial economic effect on interstate commerce.
Here, the issue is whether X (the activity) has a substantial economic effect on the interstate commerce.
2- “Substantial economic effect” is determined by activity’s cumulative impact; on the other word, congress may have the power to regulate an activity under its commerce power if the activity itself or “in the aggregate has a direct and substantial economic effect on interstate commerce
3-Local Activity argument
(/( will argue that X is a purely local activity and thus it should not come within federal government’s power.
However, (/( will argue that even X is a purely local activity, nonetheless just like Wickard v. Filburn that farmer’s production of wheat for home consumption, when viewed in the aggregated, has a substantial economic effect on interstate commerce, and thereby comes within congress’s commerce power. Here, because the activity regulated (X) is economic in nature and its cumulative effect of many instances could be felt on the supply and demand on the national economy & commodity market, or its movement in commerce, its aggregated form substantially effects interstate commerce, and thus it comes within congress’s commerce power to regulate
Draw analogy 2: Additionally, just like Heart of Atlanta Motel v US, where the court in upholding congress’s commerce power to ban racial discrimination in public facilities such as hotels, motels, restaurants, or any other local facility, reasoned that blacks would be put off traveling if there is no ban on racial discrimination and this would have a substantial impact on interstate commerce, here, doing X, even if it is purely local activity, would cause “X: i.e.,
1-affect supply and demand, channels, or instrumentalities of commerce, or
2-deter people from traveling, or
3-deter them from taking employment
4-deter them from doing business in interstate,
and thus the net aggregate impact would affect interstate commerce and therefore such activity comes within congress’s commerce power to regulate
4- Non Economic argument
On the other hand, (/( will argue that when the activity is non economic criminal activity, such as banning possession of gun within school zone, or regulating gender motivated violence, such non-economic criminal activity cannot be shown to have substantially affect interstate commerce by piling inference upon inference or how the local activity regulated could, would, may or possibly produce a ripple effect on interstate commerce.
Draw analogy 1: And (/( will argue that just like US v Lopez where mere possession of a gun near a school, which is non economic criminal activity, and would not have the required “substantial effect” on commerce even if repeated by a lot of students, here, because the activity regulated (X) is local and non-economic activity in nature, and that its repetition would not have a proximate, foreseeable and direct substantial affect on commerce, it does not come within the congress’s commerce power to regulate, and thus such statute is unconstitutional.
Draw analogy 2: similarly just like US v. Morrison, where the court announced that congress exceeds the limits of its commerce power if in regulating non-economic criminal activity (i.e., gender motivated violence) it uses a “but-for” causal link to demonstrate that conduct’s aggregate effect on interstate commerce, here, (/(’s remote and attenuated argument to linkup the regulated activity to commerce will fail, and as so, the statute is unconstitutional.
5: However, as court reasoned in Gonzales v Raich (2005) in reaffirming is earlier decision in Wickard v Filburn, form 63 years ago, and in striking down CA’s compassionate use, possession or cultivation of marijuana for physician-approved medical purposes, notwithstanding US v Lopez and US v Morris, such activity involve the production, distribution, and consumption of commodities as “quintessentially economic”, and since congress can rationally conclude that the activity regulated, even purely local, taken in the aggregate, substantially affects interstate commerce, congress has the power to regulate it under commerce.
• Reno v Condon: Driver’s privacy protection act that limits the disclosure of personal information by DMV or private parties is a valid exercise of the commerce power since the sale or release of this information is used in the stream of interstate commerce.
• Solid Waste Agency v Army Corp of Engineers: Since state’s have a traditional and primary power over land and water use, unless congress has made a clear statement intending to exercise jurisdiction over non-navigable intra-state waters, a question as to the limits of congress’s power under the commerce clause is not presented. (§ does not apply to us argument – there is no clear statement, we are not included within §)
Additional 2 arguments in upholding the § if applicable:
1- Argument #1: regulating the activity comes within necessary and proper clause for general welfare and to carry out congress’s enumerated power
2- Argument # 2: regulating the activity comes within clause 5 of 14th amendment, in which the congress can be appropriate legislation, enforce the provisions of the 14 amendment (only to ban discrimination)
5- War and Defense Powers
Article 1 section 8 gives congress the power to declare war, raise and support armies, provide for an maintain a navy, and organize, arm, discipline and call up the militia. The war power confers upon congress very broad authority to initiate whatever measure it deems necessary and proper to provide for the national defense in peacetime as well as in wartime
• Economic Regulation during war and in the postwar period to remedy wartime disruptions has been upheld
• Military courts: congress is authorized to establish Military Courts and Tribunals.
- Federal and state courts have no general power of review over court’ martial proceedings. (Except habeas corpus review)
- Military court can only try military personnel (i.e., soldiers) and enemy civilians. Military courts have jurisdiction over all offenses committed by persons who are member of the armed services both at the time of the offense and when changed
- Military courts do not have jurisdiction over American civilians (i.e., cook)
- Curfew and Exclusion of Civilians from Sensitive Areas are upheld both as joint exercise of congress’s war power and the president
6- Investigatory Power
Although congress does not have any express constitutional power to investigate, the “necessary and proper” clause permits congress to conduct investigations incident to its legislative power. Congress’ investigatory power is very broad and it may extend to any matter within a “legitimate legislative sphere”
However it must be authorized by congress itself i.e., statute or resolution creating or directing the investigation committee to investigate
• Enforcement of investigatory rights: where a W fails to appear after being summoned before a congressional committee or fails to answer a question posed by such a committee, congress may either 1-cite the W for contempt, or 2-refer the matter to US attorney general for prosecution
• Witness’s rights: generally, a W can raise 1-the privilege against self-incrimination, or 2-lack of Due Process safeguard, or 3-interference with the 1st AM rights to privacy and freedom of association
7- Property Power
Article 4 sections 3 provides that congress shall have the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”
• There is no limitation on congress’ power to dispose of property owned by the United States. The power extends to all species of property, such as leasehold interests and electrical energy, as well as real property and personal property. also disposal may involve direct competition with private enterprise and has never been invalidated on that ground
• The property clause empowers congress to even protect wildlife wandering onto federally owned land
8-Power of Eminent Domain
Although the constitution does not expressly give congress the power of eminent domain, the power to take property is “implied in aid of the power powers granted to the federal government”
• Limitation on power of eminent domain: there are 2 limitations on this power:
1. Federal taking (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the constitution.
2. The 5th amendment provides in part, that “nor shall private property be taken for public use, without just compensation”
9- NO Federal Police Power
Congress has no general police power (i.e., power to legislate for the heath, welfare, morals, etc of the citizens). Thus, on the bar exam the validity of a federal statute cannot rely on the “police power”. However, congress can exercise police power type power over the District of Columbia, Federal lands, military bases, Indian reservations, (they are United States possessions based on its power over the capitol and its property power.
➢ MBE: If an answer choice attempts to support federal action on the basis of the police power (e.g., congress can constitutionally act under the police power, or “the action is valid under the federal police power” or “to legislate for the health, welfare and moral of citizens”), see whether the facts state that the action pertains to the District of Columbia or other Federal Possessions. If not, it is a wrong choice
10- Admiralty and Maritime Power
Although congressional power to legislate in maritime matters (anything concerning navigation and sea) is not expressed in the constitution, the Court has implied it from the exclusive jurisdiction given the federal courts in this filed by article 3 section 2, supported by the ‘necessary and proper clause”. So, congress’ admiralty power is plenary and exclusive unless congress leaves maritime matters to state jurisdiction
• The Federal admiralty power attaches to all navigable waterways- actually or potentially navigable, and to small tributaries that affect navigable waterways. The federal maritime power is not limited to tidewaters or interstate waters.
11- Bankruptcy Power
Article 1 section 8 empowers congress “to establish uniform laws on the subject of bankruptcies thorough the united States.
• Congress’s power to establish uniform rules for bankruptcy is nonexclusive and states my legislate in the filed as long as their laws do not conflict with federal law
12- Postal Power
Article 1 section 8 empowers congress “to establish post offices and post roads”
• The postal power is exclusive. Under the postal power, congress may validly classify and place reasonable restrictions on use of the mail, but may not deprive any citizen or group of citizens of the general mail “privilege” or regulate the mail in such a way as to abridge freedom of speech or press (except under valid standards, such as obscenity) or violate the ban of the 4th amendment against unreasonable search and seizure.
13- Copyright and Patent Power
Article 1 section 8 gives congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Issuance of patent and copyrights)
14- Power to Coin Money and Fix Weights and Measures
Congress has the power to coin money and fix standards for weights and measures
15- Power Over Citizenship (Naturalization)
Article 1 section 8 empowers congress “to establish a uniform rules of naturalization”. Congress has the exclusive power over naturalization and denaturalization. This gives congress plenary power over aliens.
• The substantive requirements that an alien must meet to enter this country, to remain, or to become a citizen, or is deported are political questions- court cannot hear them
• Exclusion of Aliens: summary exclusion of aliens seeking admission is permitted.
• Lawfully resident aliens are entitled to notice and a hearing as prerequisite to deportation. Deportation is not punishment, so the ex post facto ban is inapplicable.
• Congress has exclusive power over naturalization and denaturalization. However, congress may not take away the citizenship of any citizen (native born or naturalized) without consent. (i.e., court held unconstitutional a statute that provided for loss of citizenship upon voting in a foreign election)
← Where a federal agency, other than congress itself, attempts to deny a federal benefit to resident aliens, there must be a clear delegation of power or otherwise it is unconstitutional.
• Rights of children of citizens: a person born in another country to US citizen parents does not have constitutional rights to become a US citizen. Congress can grant citizenship to children born abroad conditioned on their return to live in US within a specified period of time or for a specific number of years.
16-Section 5 of 14th Amendment
- Enabling Clause -
Under this clause, congress is empowered to enforce the provisions of the 14th amendment by passing an appropriate legislation to ban discrimination. However congress may not create new rights, redefine, or expand the scope of the rights. Congress may only act to prevent or remedy violations of rights as the rights are defined and recognized by the court, and that such laws must be proportionate and congruent to remedying proven constitutional violation
← 13th amendment also has enabling clause which empowers congress by appropriate legislation to enforce against racial discrimination and slavery and provide remedy for its violation
← 15th amnd also has enabling clause
Limitations on Congress’s Power
1- Limitations on Congress’ power when the federal law is directed at sates: Federalism limits: state protections
1. 10th Amnd (reserved powers for state; police power & state immunity)
1- Garcia v San Antonio MP
2- NY v US
3- Printz v US
2. 11th Amendment
2- Limitations on Congress’s power when the federal law is directed at individuals: Individual liberty / Equal protection / Due Process
- 2nd semester
3- Other limits
a. Bill of Attainder: a legislative act directed against a class of designated persons, pronouncing guilt without a trial or conviction (Legislature should not play role of judiciary)
b. Ex Post Facto Law: a law passed after the occurrence of a fact or commission of a an act, which retroactively changes the legal consequences or relations of such fact or deed (substantially prejudicial- serves as punishment). States are also forbidden from passing any ex post facto law
• MBE Tip on 10th: As a practical matter, the court almost never strikes down on 10th amendment grounds a federal regulation or tax that impacts on state or local government entities. Thus, a choice on an MBE question that suggests that the 10th amendment will invalidate a federal action is almost always wrong. But on essay exam, you must raise and argue 10th (commandeering framework) amendment limitation on federal regulation or tax that impacts on state or local government entities.
• State sovereignty implicit in 11 amendment bars an action in federal court against a state hospital, school, university, DMV, (traditional government function) or state officials if “1-the state is the real and substantial party in interest” and that “2-the remedy in question is to compensate retroactive (past) damages and that 3-the state treasury will be paying the damages (cannot sue if state treasury will be paying retroactive damages)
10th Amendment – State police power – military language:
10th amendment provides that powers not delegated to the federal government, nor prohibited to the states, are reserved to the state. The court has announced that Under 10th amendment,
1. “Congress can require states to comply with federal programs such as minimum wage laws or environmental laws (Garcia v SA)
2. but “congress may not commander the legislative processes of the state by directly compelling them to enact and enforce a federal regulatory program” (NY v US)
3. also, “congress may not conscript or command state officials to execute or administer a federal regulatory program”. (Printz v US)
Framework
1. Is federal law telling state to comply w/ federal law? Its okay to tell state to comply w/ federal law
Draw analogy 1: Just like Garcia case, where the court overruled Usery case for lack of manageable and workable principal for determining what exactly constitutes “traditional state activity” and announced that “state sovereign immunity” is not violated when federal law requires states to comply with a federal program such as minimum wage law, here, this federal law is requiring state to comply with X, and since “state sovereign interest are protected by procedural safeguards inherit in the structure of the federal system than by judicially created limitations in federal power”, such law does not infringe on state sovereignty and it does not violate 10th amendment.
2. Is federal law telling state what laws to enact? If yes, violating 10
Draw analogy 2: just like NY v. US, where the court held invalid as violating the 10th amnd a federal law which required the state of NY to pass legislation to arrange for the disposal of radioactive waste generated within its boarders, here, the federal law is /is not/ commandeering the state to pass a law at its own, therefore it is /is not invalid as violating the 10th amendment.
3. Is federal law telling state to enforce a federal law? If yes, violation of 10th amendment
Draw analogy 3: just like Printz v US, where the court held invalid as violating the 10th amend a federal law that required the state officials to enforce the Brady Handgun Act, here, the federal law is / is not/ conscripting and commanding state officials to execute and administer a federal program, and thus the law is / is not infringing on states sovereign immunity, & ( it is void as violating the 10th amendment
11th Amendment Limits (bar favorite)
The 11th Amendment prohibits a federal court from hearing claims brought by a private party against a state government.
11th Amendment does NOT bar
3- Actions brought by US/ Federal government or another state
4- Actions brought by private party against:
1- Local government, county, municipality, city, or
2- State officers
• State officials may be sued in federal court for injunctive relief, and money damages to be paid out of their own pockets. However, State officials (& state hospital, state university) may not be sued if it is the state treasury that will be paying retroactive damages (no compensating past wrongs)
← No problem if the suit requires prospective (future) payment from the state. A federal court may hear an action for damages against a state officer where the effect of the action will be to force the sate to pay money in future to comply w/ the court order.
i.e., ( sues the state commissioner of department of public welfare for failing to comply w/ federal welfare regulations. The federal court can order future compliance w/ the federal regulation, even if this will result in causing the state a large amount of money in the future. However, the federal court cannot award back payments of amounts previously improperly withheld, b/c the order would require payment from the state treasury for retroactive relief.
• When congress abrogates the state’s 11th amendment, it must: 1-unequivocally express its intent to abrogate the 11th amend, 2-not do so under commerce clause, but rather under § 5 of 14th Amend, 3-establish “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”, 4-identify “a history and pattern fo unconstitutional employment discrimination by the states
← 11th amnd does not bar a state court from hearing a claim against a state, but Sovereign Immunity Doctrine prohibits a state court from hearing claims brought by a private party against a state government, even on federal claims without its consent.
Exceptions to 11th Amendment:
A state may be sued in federal court by a private party if 1-a state expressly consents, or 2- congress removes the state immunity under 14th amendment with an express and unmistakably clear language.
• A state may expressly consent to a suit in a Federal Court. A state may only waive its 11th amendment immunity expressly and unequivocally, or by voluntarily invoking a federal court’s jurisdiction such as by its removal of a state law claim from state to federal court, i.e., removal jurisdiction
• Under section 5 of the 14th amendment, congress may abrogate state immunity protection of the 11th amendment, however, this is applicable only if congress is exercising its 14th amendment power and not to where it involves the commerce or any other power
• Congress can remove the state’s 11th amendment protection only under its power to prevent discrimination under the Fourteenth Amendment with an express and unmistakably clear language. I.e., 1-the equal pay act, based on the Fourteenth Amendment, can serve as a basis for federal suits against a state by its employees, i.e., 2-damages action under civil rights statute,
o Congress cannot authorize suits against states under any other constitutional provisions, i.e., congress has no power to abrogate state immunity under the commerce clause, patent clause, war, postal, tax, etc
o Language such as “any” is not enough to remove this immunity. Congress’ language much be unmistaken-ably clear and expressly provides that “state” can be sued in federal court for discrimination
• 11th amnd bars suits “commenced or prosecuted” in federal courts. It thus bars original jurisdiction before the Supreme Court or other federal courts. It does not bar appellate jurisdiction in the form of Supreme Court review of state court decisions where the state is a party
Delegation of Legislative Power
Congress has broad discretion to delegate its legislative power to executive agencies or even to the judiciary, as long as intelligible standards are set and the power is not uniquely confined to congress (i.e., power to declare war, impeach)
i.e., congress can delegate the power to establish sentencing guidelines for criminal cases to a sentencing commission located in the federal courts and mad up, in part, of federal judge, as long as the tasks delegated do not undermine the integrity of the judiciary or the power of the other branches
- Uniquely confined to congress are 1-the power to declare war, and 2-the power to impeach
- Virtually there is no limits on congress’ ability to delegate its power – although delegation of legislative power requires “intelligible standards” for the delegation, almost anything will pass for an intelligible standards and thus all delegations, no matter how broad or even if without standards, have been upheld since 1937
MBE Tip: any answer choice saying “federal law is unconstitutional b/c excess of delegation of power” is always wrong answer.
• There might be a violation of separation of power issue when congress delegates its power:
1- Congress can not give itself the power to remove an officer of the executive branch by any means other than impeachment, i.e. if congress delegates rule making power to an executive branch agency, it may not retain the power to fire the agency head officer.
2- Similarly, congress cannot give a government employee who is subject to removal by congress (other than by impeachment) purely executive power
I.e., a federal statue transferred the authority to control two DC area airports from the federal government to a local authority. However, the statute reserved to a review board a veto power over the local authority’s decisions. The review board was comprised of nine members of congress. The statute violates the separation of powers doctrine in one of the two ways: 1-if the review board’s power is considered to be legislative, the statute created an unconstitutional legislative veto, 2- if the review board’s power is considered to be executive, the separation of powers doctrine prohibits members of congress from exercising it
• Congress may not delegate executive power to itself or to its officers.
• Remember, congress can delegate its power, but it can’t take them away, i.e., can’t be delegated executory power to veto or implement laws. Congress can give, but it cannot take
• The legislative may delegate its authority to enact regulations, the violation of which are crime, but the execution and prosecution for such violation must be left to the executive and judicial branch. However, in enacting the regulations, the agencies may enact and impose civil penalties or fines without prosecution in court.
Speech and Debate Clause- Special Immunity for Federal Legislators
Article 1 section 6 provides that “Senators and representatives shall not be questioned in any other place for any speech or debate in either house”. The speech and Debate Clause protects legislators and their aides against criminal or civil proceedings for “legislative acts”
• This immunity covers conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct. This immunity also extends to aids who engage in acts that would be immune if performed by the legislator.
• The Speech and Debate Clause DOES NOT cover:
1- bribes,
2- Speeches out side Congress, or
3- the republication in a press release or newsletter of a defamatory statement originally made in congress
4- does not extend to state legislator who are prosecuted for violation of federal law
Congressional “Veto” and Line-Item Veto –both are unconstitutional
• A legislative veto is an attempt by congress to overturn an executive agency action without bicameralism (passage by both houses of congress), or presentment (giving the bill to the president fro his signature or veto). Legislative vetoes of executive actions are always unconstitutional (b/c the legislative action to be valid, there always must be bicameralism and presentment.
i.e1 ., Chadah case: Congress granted to the INS the power to deport or suspend form deportation illegal aliens. INS decisions to suspend deportations had to be submitted to congress. Either house could pass a resolution overriding INS’s decision. This legislative veto provision is unconstitutional since Congress is attempting to act without bicameralism and presentment.
← To be valid, legislative action (the veto) must be approved by both houses and presented to the president for his approval
i.e2., by statute, congress grants to the president the power to send military troops into combat, without need for congress’ prior approval, however, congress reserves the power to force the president to withdraw the troops. The statute does not provide for presidential veto of congress’s decision to withdraw- statute is unconstitutional
• Line Item Veto: president vetoes part of the bill and signs the rest into law. This is unconstitutional. The president must either sign the whole bill or veto the whole bill
Federalism – limitations on state & local government b/c of the existence of a national government (20%)
State Framework
Source of State power – 10th Am
Preemption issue?
3- State Regulation
– Dormant Commerce Clause
a. Discriminatory
b. Undue burden
Privileges & Immunities Clause
Approach:
1- Give the source of state power (10th)
2- analyzes “Does the state regulation affect an activity addressed by federal legislation?
- If federal law preempts the filed, or the state law conflicts with the federal law, state law is preempted and is invalid.
- If the federal law authorizes the state law, or that the state law is not in conflict with federal law, then the state law is not preempted and ( the state law can be held valid if it does not violate the dormant clause
← On essay, reach the conclusion that fed law is not in direct conflict with state law, (so you get to argue dormant framework)
3- analyze “Dormant Framework”
4- analyze “P & I Framework”
• Dormant commerce clause and the Privileges and Immunities of Art 4 – consider them together on the exam: 2-3 MBE question and high possible essay
• No constitutional provision expressly states this
• “the negative implications of the commerce clause” is another way of saying the dormant clause (they mean even where congress has not acted, the commerce clause restricts states regulation of interstate commerce; states may not favor local economic interest or unduly burden interstate commerce.
• Congress may permit state regulation that would otherwise violate the commerce clause (dormant). Likewise, congress may prohibit state regulation that could otherwise be upheld under the commerce clause (preempts it). Congress may not, however, permit a state to violate civil liberties.
1- Source of State Power
The 10th Amendment provides that the “powers not delegated to the Untied States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”
2- Preemption
The supremacy clause provides that the constitution, laws and treaties of the United States are the supreme law of the land. In General, a federal law supersedes any state law that is in direct conflict with federal law such as conflict due to physical impossibility. Additionally, congress can preempt any sate law in an area where the federal scheme is so pervasive as it clearly shows legislators’ intents to occupy the entire field (field preemption)
Express Preemption
If a federal statute explicitly says that federal law is exclusive in a field, then state and local law are preempted.
• Anytime congress has authority to act, congress can declare federal law exclusive in the field. (Hint: look into the language of the federal law to see if the federal law is exclusive in that filed or not – if it says “only” federal govt can do X or fed’s regulation occupies the entire filed, or “fed gov has exclusive jurisdiction over X”, the state law is expressly preempted) (the word “only” is the hint)
i.e., federal Meat Labeling Act says that only the federal govt can grade meat(states have no rights
• Preemption may occur 1-where state law is in direct conflict with federal law (explicitly or implicitly in direct conflict), or 2-where congress acted to “occupy the filed” by providing complete regulation. On essay, you must argue both sides. The key factors to consider is “the intent of congress” and uniformity argument; that is:
1- Did congress intent to eliminate all state regulation in the same filed? and
2- is national uniformity necessary to effectiveness?
- i.e., case that CA enacted a law that no plain can land after 10:00 pm in Burbank airport due to noise. That increased the air traffic at LAX. The CA law is preempted since FCC regulates aviation. (watch out for Federal Agencies i.e., FDA)
- i.e., FR: rubber bumper v: NY metal. Fed law preempts state b/c it is impossible to comply w/ both
Implied Preemption
Even if statute is silent on preemption issue, it could exist IF:
1- The federal and state law are mutually exclusive or if it is impossible to comply with both ( fed law preempts state law
i.e., Fed agency adopted a rule that said all maple syrup has to have label of ingredients, and the state of Wisconsin said that no ingredient labels were necessary ( since someone could not simultaneously comply with both state and fed law, the state law is preempted.
MBE Tip: states can set environmental standards stricter than the fed law and will still be upheld unless congress clearly prohibits it. CA can set clean air quality standards stricter than fed law regulating the matter when regulating activity of private persons.
i.e., fed law says gasoline must contain 85% purity. NY passes a law and says gasoline must contain at least 80% purity. NY law will be preempted since there is 5% conflict (80% to 85%). CA passes a law and says gasoline must contain 90% purity. CA law will be upheld since is it not in conflict with fed law (if it contains 90% purity, it contains 85% purity)
2- When state law frustrates or impedes the achievement of a federal objective ( fed law preempts state law i.e., if fed law wants unfair labor grievances to be filed and state passes a law that impedes that objective
3- Congress evidences a clear intent to preempt state law ( fed law preempts state law (can prove through legislative history) i.e., immigration: congress has made it clear that it does not want state to regulate immigration
State Taxation of Federal Govt
States may not tax or regulate federal activity (unless congress consents)
State may not tax when it is the federal treasury that will pay the taxes - it is unconstitutional to pay a state tax out of the federal treasury
i.e., there is a mom and pop store on federal land and state wants to tax the store. can state tax it? yes b/c tax is being paid by private business, not the federal treasury
i.e., in the above example, if the business was a federally owned business instead of mom and pop store, state could NOT tax it b/c tax would be paid by fed treasury
i.e., state income taxes on salaries of federal employees are valid since the tax would be paid by the individual employee and not the federal treasury
State Regulation of Federal Govt
States may not regulate the federal government or even its agent while performing their federal function unless congress consents ( instrumentalities and agents of the federal government are immune from state regulation relating to performance of their federal function
i.e., a state may not require a post office employee to obtain a state driver’s license in order to derive a mail truck
i.e., a state may not require a contractor to obtain a state license to build facilities on an Air Force bases, located with the states, pursuant to government contract
• National legislation preempts state law when congress exercises its express powers over matters pertaining to uniform laws on immigration or bankruptcy.
• Congress preempts any state law that conflicts with powers expressly and exclusively enumerated to it, i.e., any of the 16 enumerated power; to coin $
• A specific statement of pre-emptive intent is not required and absent of explicit pre-emptive language, field or conflict preemption may occur. As a general principal, if state law is not in direct conflict with federal law and congress has not perversely regulated the activity as to occupy the entire filed, the state law is not preempted and rather it supplements fed law Field pre-emption takes place where the scheme of federal preemption is so pervasive as to make the reasonable inference that congress made no room for the states to supplement. Conflict pre-emption takes place where compliance with both federal and state regulation is a physical impossibility.
3- “Dormant Commerce Clause”
State § Framework
1st (Definition):
As a general principal, if congress has not enacted laws regulating the subject matter or that the state law is not in direct conflict with federal law, a sate law regulating local aspects of interstate commerce will be upheld if it 1-does not discriminates against interstate commerce; and 2- does not unduly burden the interstate commerce
First, if the state or local regulation is discriminatory on its fact for economic favoritism or protectionism purpose, it is subject to virtually per se rule of invalidity, and is therefore subject to strictest scrutiny in determining whether otherwise a valid reason exists for such discrimination.
Second, if the state has a compelling reason for its discrimination such as furthering an important state interest like health and safety, the state law will be upheld if there are no reasonable, nondiscriminatory alternatives available.
(3rd) On the other hand, if the state law is not discriminatory on its face and treats local and out of state interests evenhandedly, it will be upheld unless the burden on interstate commerce outweighs state’s promotion of a legitimate putative local interest.
(4th) Lastly, an otherwise discriminatory state law may be upheld if it falls within an exception to the dormant commerce clause (i.e., market participant, direct subsidization, or congressional consent.)
If any of these tests are not met, the state regulation will be held invalid for violating the Dormant Commerce C
Framework:
1. Start by giving Complete Definition
2.Discriminatory on its fact?
1.Economic purpose ( Per se invalid
pelling reason?+alternative means?
4. Unduly Burdensome?
5. Exceptions to Dormant
6. Privileges and Immunities Clause
7. 21st Am if liquor is involved
On essay, don’t just leap on the invalidity of state law b/c it is burdensome. You must analyze its benefits; show and argue its putative local benefit; then discount those benefits against its burden; if its benefits are relevantly nothing or minimal compare to its burden, then strike it down. On MBE if the state law is discriminatory, it is almost always unconstitutional; if it is not discriminatory, but only burdens slightly, it is usually upheld.
( Make sure to give headings
2nd) Is the sate law Discriminatory?
Because the state law say “X”, it does /does not/ favor and protect local economic interest over out of state interests and therefore the state law is /is not/ discriminatory on its face.
Since the state law is discriminatory on its face, it is subject to virtually per se rule of invalidity and is therefore subject to strictest scrutiny in determining whether otherwise a valid reason exists for such discrimination.
➢ To determine whether state law discriminates ask, “Does the state law treat out of stators differently from in stators?
← Protecting local economic interest?
← Favoring and implementing state business over out of state?
← Putting barrier on out of state competition?
← Requiring the use of instate facility as a condition
← Preferential treatment to state business
- Laws regulating truck length and width did not discriminate against interstate commerce b/c it treated all trucks alike.
- NJ said no out of state garbage can be filled in NJ landfills ( discriminatory
- a state cannot place a surcharge on out of state milk to make that milk as expensive as milk produced in state
- a law requiring all locally produced solid waste to be processed at a local waste processing business was held invalid b/c it was a traded barrier against competition from out of state waste processors- favoritism purpose
- a state may not prohibit private landfill or waste disposal facilities from accepting out of state garbage or waste or surcharge such waste (unless congress authorizes the discrimination
- a state cannot exempt local business or products from taxation or a regulation while it seeks to apply it to out of state business or products that come in sate
- a state cannot require in state companies to sell products at a lower price to in state residents than to out of state residents.
- A “cardinal” principal of the dormant commerce clause is that a state may not benefit in state economic interests by burdening out of state competitors.
- As justice O’Connor argued in C&A Carbone v Town of Clarkstown, “statutes are facially discriminatory only when economic advantages are drawn on the basis of geographical lines”
3rd) Is there Compelling reason?
On the other hand, State of S will argue that its regulation is not for the purpose of benefiting and protecting its business against interstate commerce, but rather it is regulating the (X) for the purpose of health and safety of its citizens, and since protecting health and safety of citizen is an important state interest, it has a compelling reason to discriminate.
However, even if S has a compelling reason to discriminate against interstate commerce, nonetheless its law will be struck down unless it can show that there are no reasonable, nondiscriminatory alternatives available.
Because the regulated activity is “X”, there is a substantial likelihood that with the modern technology and science, there are reasonable nondiscriminatory means available, and if so, the law will be held unconstitutional. However, state will argue that just like “Main v. Taylor”, where the ban of importation of live baitfish because of parasites was for health and safety purposes and that there was no reasonable nondiscriminatory alternative to avoid the problem, here the activity regulated “X” is substantially similar to “quarantine and inspection laws”, and since the only remedy to avoid the problem is to ban and discriminate against out of state interests, the law should be upheld.
Main v Taylor: Main validly prohibit the importation of live bait fish b/c parasites could have detrimental effect on its own fish population (protecting health and safety) and that there was no reasonable nondiscriminatory alternative to avoid the problem.
• This is extremely narrow exception and usually does not apply since usually there is alternative non-discriminatory means available. Usually this narrow exception applies only in quarantine laws.
• MBE: On the example above, however, state could not prohibit export of live baitfish when no major state interest was involved
• A state may have a legitimate interest in discouraging economic concentration, monopoly power, and protecting citizens from fraud.
- Necessary = state must show that no less restrictive alternative exists
- Important = non-economic
- Benefiting in-stators at the expense of out of stators will never be considered an important interest
“Assuming that the law is not struck down as discriminatory, next question is
4th) Is the law unduly burdensome?
Here, since the in state interest and out of state interest are arguably burdened to the same extent, the sate law treats local and out of state interests evenhandedly. Because state law treats local and out of state interest evenhandedly, it will be upheld unless the burden on interstate commerce outweighs state’s promotion of a legitimate putative local interest. Whether the burden is clearly excessive in relation to the local putative benefit depends on
1- the nature of the local interests
2- the availability of reasonable, adequate and effective alternative means that would have a lesser impact on interstate commerce
Here, S will argue that the state law is both necessary and important to further a putative local interest, namely “X”. The state will further argue that its law is necessary since no lesser restrictive alternative exists (same argument as supra), and that it is important since it is not primarily economic in nature. However, state’s argument is weak since benefiting in stators at the expense of out of stators will never be considered an important interest. Additionally the benefits of state law (doing “X”) are marginal since any “non-X” will do the same with essentially the same amount of risk and that there is no significant safety benefit.
On the other hand, the burden imposed on interstate commerce is to require every one “to do X”, and since such burdens will likely outweigh state’s promotion of legitimate putative local interest, the law will be held unconstitutional unless an exception to Dormant commerce clause applies.
- I.e., Illinois had a law requiring curved mud flaps, all other states required straight mud flaps. Although it did not discriminate, it put an excessive burden on interstate commerce and there was no evidence to show that the law had any benefits. ( Law was a violation of dormant commerce clause
- I.e., a state law limiting the length of trucks traveling on Wisconsin highways was held unconstitutional b/c the regulation unduly burdened interstate trucking, and the state failed to demonstrate any significant safety benefit
← For state interest and benefit, State must show that the law is necessary and important
5th) Does an exception apply?
1. Market Participant Doctrine
The MPD allows a state to favor its own citizens when 1-dealing with state’s own business or 2-providing benefits from government programs. In other word, when a state is acting as market participant (e.g., buying or selling product, hiring labor, giving subsidies), and not a regulator, the dormant commerce clause does not apply.
State will argue, because it is involved in the market as X (i.e., producer) and is taking a risk, Market Participant Doctrine (MPD) applies and its law should be upheld.
However, there are 2 limitations where this doctrine does not apply:
First, MPD does not apply when the regulation involves natural resources such as coal, timber, wild game, or minerals.
← Because the activity regulated (i.e., power plant) primarily involves the use of natural resource of the state such as use of water, coal, timber wild game, or minerals, MPD does not apply and therefore state cannot discriminate in favor of its owns citizen
- Whenever you have use of water on the fact pattern, raise the issue that MPD does not apply to natural resource
← Because Cement is not a natural resource like coal, timber, wild game, or minerals, MPD may apply and state can regulate it if it is M P.
← Because tuitions and educations do not involve natural resource of the state, MPD applies and thus state can regulate. Also tuition, education are upheld as a form of direct subsidy
• Business Entry Exception: to protect shareholders of a corporation incorporated in a state from hostile takeover, states can adopt a “control share acquisition statute: it does not violate commerce clause b/c state’s purpose is to protect current shareholders, and it did not discriminate between takeover bidders based on their state of origin. A state may permit its stockholders to prevent individual investors from selling their stock to any tender offer. A state may have a legitimate interest and compelling reason in discouraging economic concentration, monopoly power, and protecting citizens from fraud.
• Make sure to check if there is after market regulation to raise these issues 1-downstream market argument, 2- violation of dormant CC 3- violation of commerce clause, and 4-is preempted
Second, MPD does not apply to activities in which the state is not a participant; in other words, Down Stream regulations violate the dormant commerce clause. While a state may choose to sell only to state residents, it may not attach conditions to a sale or regulate the markets beyond its immediate transaction in a way that would discriminate or impose an undue burden on interstate commerce. (i.e., processing market, or any market after the transaction)
- Here, S may be market participant with respect to “production, sell, harvest and etc ” of timber market, however, b/c the state law attaches a condition subsequent (i.e., local processing requirement) and is trying to regulate beyond its immediate transaction, the state is not a market participant w/ respect to “processing, electricity & energy market”.
← Violation of Commerce Clause: Whenever there is an exportation to foreign country, there is one more argument:
Additionally, here, not only the state law violates the dormant commerce clause since it attempts to regulate down stream market (i.e., processing locally before shipment), but also it violates the commerce clause itself since Article 1 give the congress power to regulate foreign commerce.
• Exam Tip: Whenever there is MPD issue, find a way that the state law may also be regulating or affects something down the market (after its immediate transaction it has post purchasing affect), and raise 1-“Down Stream Market issue”, 2- violation of Commerce clause itself (i.e., state is exporting in violation of art 1, or that the filed is preempted by fed law), 3- violation of dormant, 4- preempted
2. Direct Subsidization: a pure subsidy for a local industry funded out of general revenues imposes no burden on interstate commerce and does not violate dormant commerce clause. However, a tax on interstate products or services that is in turn used by way of subsidy or rebate to favor in-state interests that are hurt by the tax, are unconstitutional
• There are 4 types of subsidy: 1-subsidy via regulation, 2-subsidy via targeted tax breaks, 3-subsidy via market participation, 4-subsidy via direct appropriation from general revenue. The first two are subject to commerce clause and usually fail, while the last two are exceptions to dormant commerce clause and allows a state to regulate
• As a Direct general subsidies and market participants, a state may allow 1-free public schooling to its residents while charging out of stators – tuition subsidy; 2-give public assistance only to its residents; 3-give other forms of social welfare to is own residents
• The commerce clause precludes a state from mandating that its residents be given a preferred right of access over out of state customers to natural resources located within its borders or to products derived therefrom. Residents may, however, receive preferential treatment if the state is providing “direct general subsidies” (Cash benefits) or is a “market participant” or to groups or organizations providing “traditional state government function”
- city collage tuition of non-resident for $300 a unite while $30 a unite for residents does not violate dormant commerce clause, b/c tuition is a form of subsidy
- laws requiring to be a resident of that state to receive benefit and subsidiary of that state is valid
3. Congressional Approval
If Congress approves the state or local law it is permissible even if it would violate the DCC (approval takes the act outside the realm of the DCC)
• When regulations that deal with “parochial favoritism” are pursuant to and affirmatively permitted by the specific funding authorization of congress, no commerce clause violation may be found.
- in Boston case, law was even regulating downstream market of employment and who the subcontractors can employ (if congress gives money and affirmatively permits by specific funding authorization, there is congressional approval and no dormant commerce clause violation may be found - federal funds are not subject to dormant commerce clause
6th- Privilege and Immunity Clause
Under article 4 section 2, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”. P and I Clause precludes a state from discriminating against the natural citizens of other states where
1- the activity involved is “fundamental to the economic livelihood of the nation as a whole,
2- Unless:
1. the state has a substantial reason and interest to justify its discriminatory treatment,
2. and that restriction imposed is narrowly tailored and bears a sufficiently close nexus to the state’s objective (i.e., must be a limited restriction, i.e., term of years rather than unlimited time: there must be no less restrictive means to solve the problem) (Supreme Court of New Hampshire v. Piper: closely related substantial justification to discriminate)
• There are two P and I Clause in the constitution: 1- the P and I clause of Art 4 section 2 “the citizens of each state shall ….” , 2-the P and I clause of 14th am “no state may deprive any citizen the privileges or immunities of being a citizen”. The second one, P and I of 14th am Due Process only protect attributes of US citizenship and is rarely applicable and on MBE it is generally a wrong answer unless it concerns the right to travel. (Impeding the right to travel, and impeding the right to petition congress for redress of grievances, the right to vote for federal officers are violation of the 14th am) On the other hand, the P and I clause of 4 am section 2 is the “interstate P and I” (protects natural citizens of other states against discrimination by a state concerning economic activities in pursuit of livelihood) and is always at issue.
I.e. CA was discriminating against new residents as opposed to its old and longer-term residents by requiring a 1-year min residency before welfare kicks in. This was held to violate the P or I clause of the 14th Amend b/c impeded traveling and struck down
• On essay, if you can argue that the regulation also impedes the right to travel, argue that it violates the P and I clause of 14th Am as well as P and I clause of 4th Am sec 2
Framework:
P & I Art 4 sec 2
Step 1: BZ: “Because the activity regulated is “X”, and that such activity directly affects the economy and the work force, the activity (X) is a matter of fundamental interest sufficiently basic to the livelihood and economic harmony of the nation as a whole and since S’s regulation discriminates against the natural citizens of other states, the regulation is likely to be in violation of P& I clause of A4 S2.
Step 2:substantial justification exists? On the other hand, S will argue that its regulation is to protect the general health and welfare of its citizens (since the non-residents are either the cause or a part of the problem that state is attempting to solve) and thus it has a substantial and important reason to justify its discriminatory treatment.
• This “substantial reason” must be non-economic in nature and must be necessary to achieve an important government purpose
Step 3: however, even if S has a justifiable reason for its discriminatory treatment, i.e., H, S & general welfare, nonetheless since lesser restrictive means to solve the problem exists, such as “X i.e., having inspector at the site, or limiting Y or issuing more permit”, the restriction imposed does not bear a sufficiently close nexus to the state’s objective and therefore it violates the P and I clause.
• The exceptions that applied in dormant commerce clause do not apply to P and I clause: Under P and I clause, congress cannot constitutionally approve of out of state discrimination nor would a state be able to claim a market participant exception.
• Corporations, aliens and trusts cannot sue under the P & I clause. In contrast, corporations and aliens are protected by 1-Equal protection, 2-Due Process clause of 14th Am., 3-Dormant commerce clause
• Exam Tip: If you have a question where the ( is a corporation use only dormant commerce clause in your analysis. If the ( is a person, then consider both P and I and DCC.
• Fundamental interest: P and I does not prohibit all discrimination by state in favor of its own citizens; it prohibits only discriminations for “fundamental interest.” Fundamental interests are those involving important commercial activity (the test is: “economic activity in pursuit of livelihood- $: the ability to earn one’s livelihood- laws that impede out of stators from getting jobs or making a living in the state). Also civil liberties are protected by P and I clause. (i.e. CA passes a law that says no freedom of speech for out of stators. Civil liberties are rarely litigated under the P and I Clause)
• Statute charging non-resident commercial fisherman more than residents violates P and I clause and is unconstitutional since commercial fishing is an economic activity pursuant to livelihood.
• If the activity regulated is recreational activity, P & I does not apply and state can discriminate in favor of its own citizen. Statute charging non-residents more for recreational hunting license does not violate P and I clause and is therefore constitutional. (elk hunting is recreational)
• Statute giving resident creditor priority over nonresident creditor as to assets of foreign corporation in receiving proceeds from foreclosure violates P and I clause and therefore it is unconstitutional. (Creditor collecting debt is an economic activity pursuant to livelihood)
• Statute or court rule requiring state residency to be licensed to practice law or for the admission to state bar violates P and I clause b/c practicing law is a private employment contract pursuant to livelihood)
• Statute imposing residency requirement for abortion violates P/I
• State income tax only nonresidents who earn money within the state violates P and I clause b/c income is economic and for livelihood)
• State law requiring private sector employers to give hiring preference to residents violates P and I clause b/c it is a private employment pursuant to livelihood
o However, a state may require a person who holds a government employment to be a resident of the state.
7th- 21st Amendment (if there is liquor)
The 21st Am gives state government wide latitude over (only) 1-the importation of liquor and 2-the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor manufacturers may violate the commerce clause.
BZ: as justice Kennedy writing for the majority opinion in Granholm v Heald specified, the following three categories are not saved by the 21st AM: 1- state laws that violate other provisions of the constitution such as First Am, Establishment Clause, Equal Protection Clause, Due Process Clause, and the Import and Export clause, 2-21st Am does not abrogate the commerce clause power with regard to liquor, 3-the state may not favor in state economic interest over out of state interest in the regulation of alcohol (discriminatory regulations.)
i.e., state law that grants in state wineries access to consumers on preferential terms violate the dormant commerce clause and such discrimination is neither authorized nor permitted by 21st Am
• A state law that requires out of state sellers of alcoholic beverages to affirm that the price it is charging retailers or wholesalers in the state is no greater than the price that it is charging in other states violates the commerce clause. The 21st Am does not authorized this type of state interference with commerce
• The 21st Am does not trump the doctrine of preemption.
• Transitory liquor (liquor bound for out of state destinations) is subject to commerce clause. Thus, a state prohibition on transporting liquor through the state violates commerce C
• The state’s power is also limited by other constitutional provisions, such as the Bill or Rights and the Due Process and Equal Protection Clauses (i.e., 1 Excessive drinkers are entitled to procedural Due Process before the state can post their names in liquor stores, i.e., 2the Equal Protection Clause prohibits different age minimums based on sex in the sale of liquor. A state cannot permit 18 year old females to buy beer and prohibit 18 to 21 year old males from doing so.
• 21st Am does not prohibit congress from controlling economic transaction involving alcoholic beverages under commerce power. Thus, a federal antitrust law can prohibit a practice of liquor dealers that has the effect of fixing minimum prices, or regulate liquor by imposing conditions on grant of federal funds under the spending power.
Full Faith and Credit
Courts in one state must give full faith and credit to judgments of courts in another state, (I.e. a party who looses in NY may not re-litigate in CA, the CA courts are bound by the NY ruling) so long as:
a. The court that rendered the judgment had personal and subject matter jurisdiction
b. The judgment was on the merits.
c. The judgment was final.
State Taxation of Interstate Commerce (Rarely tested on the bar)
• As a general principal, States may not use their tax systems to help in-state businesses
i.e., Ohio had a law that gave tax credit to people that bought ethanol produced in state – not allowed b/c the state was using their tax system to help in state businesses.
• A state may only tax activities if there is a substantial nexus to the taxing state
i.e., CA cannot tax a business that operates in NY. In order for CA to impose a tax, it has to be an activity that has a substantial nexus to CA
• State taxation of interstate businesses must be fairly apportioned
I.e. an interstate trucking company that operates in all 50 states. CA has to fairly apportion the tax so it is only taxing the revenue apportioned to it. The state can only tax the portion of the business that is connected with the state (substantial nexus).
3. Executive Powers
Domestic Powers
1. Appointment
1. Superior v. Inferior Officers
2. Independent Counsel
2. Removal Power
1. By President
2. By Congress
3. Power to Pardon
- Presidential prerogative
4. Veto Power
- Presidential prerogative
5. Powers as Chief Executive (internal affairs: Whether P can act in the US w/o congressional authority?)
← Youngstown sheet v. Sawyer: –Jackson’s 3 categories
← Specifically directed vs. discretion: Impoundment controversy cases
← Separation of powers doctrine
2- Foreigner Affairs Power
1. Treaties Power
2. Executive Agreements
3. Commander in Chief powers (war powers)
3- Executive Privilege & Immunity
4- Impeachment
Source of Power: Article 2 section 1 provides that “the executive power shall be vested in the president.” This provision confers broad authority in the President to execute the laws of the United States. Although there are few enumerated powers expressly granted to the president under article 2, much of president’s domestic and foreign powers are implied.
The court has emphasized strongly that the president has not power to make the law, but has the power to execute them.
1- Domestic powers
1. The Appointment Power
Article 2, section 2 gives the president the power “to nominate and appoint, with the advice and consent of senate, all “1-ambassadors, 2-other public ministers and 3-counsles, 4-judges of the Supreme Court, and 5-all other officers of the United states, on the other hand, congress may vest the appointment of inferior officers (including special prosecutors) to either 1-the president alone, or 2-the judiciary, or 3-heads of departments (i.e., cabinet members)
• Principal officers: Congress must approve, but President alone may appoint. Inferior officers: Congress may vest the appointment of inferior officers (independent council) in the President alone (no need for Senate confirmation), the heads of departments, or the lower federal courts.
Although congress may appoint its own officers to carry on internal legislative tasks (i.e., its staff), congress may not appoint members of any agency or commissions with administrative power (that’s b/c “members of a body with administrative or enforcement powers” are “officers of the United States” and pursuant to Art 2 section 2, “officers of US” must be appointed by president with advice and consent of Senate
Special prosecutor (i.e., appointed to investigate government employee misconduct) is an “inferior officer” since prosecutor has limited duties (to investigate and report to its boss) and therefore the appointment clause allows congress to vest the power to appoint a special prosecutor in the judiciary
• Congress itself can never appoint members of a body with administrative or enforcement powers
• Congress may not give itself or its officers the appointment power
• Congress may not create a new federal agency by statute
2. The Removal Power
Although the constitution is silent as to president’s power to remove appointees, as a general rule, president can remove high level, purely executive officers (i.e., cabinet members, ambassadors) at will and without any interference by congress, but congress may provide statutory limitation (i.e., removal only for good cause) on the president’s power to remove all other executive appointees. Congress may remove executive officers only through impeachment process
← President’s removal power: Unless removal is limited by statute, the President may fire any executive branch official.
• Congress by statute can limit removal of an office IF:
1. It is an office where independence from the president is desirable (i.e., congress cannot limit removal of the president’s cabinet), AND
2. Congress can limit removal to where there is good cause
• Congress cannot prohibit removal
• Congress cannot give a government employee who is subject to removal from office by congress any powers that are truly executive in nature. I.e., congress cannot give the Comptroller General (one could be removed from office not only by impeachment but also by a joint resolution of congress) the function of establishing the amount of automatic budget reductions
• Impeachment and Removal by Congress: president, Vice president, Federal Judges and officers of US can be impeached and removed from the officer for treason, bribery, or for high crimes and misdemeanors. Process= 1st impeachment by House of Rep, ( 2nd Trial by Senate ( 3rd conviction ( 4th removal (impeachment alone does not remove a person from office). House of Rep has the sole power of impeachment, which requires the majority vote. Once the House impeaches, there will be a trial by the Senate. Conviction in the senate requires a 2/3rd vote. Person will be removed only after 1-impeachment by House and2- Conviction by Senate
3. Power to Pardon
Article 2 section 2 gives the president the power “to grant reprieves and pardons for all federal offenses except in cases of impeachment or civil contempt.
← President’s pardon power cannot be limited by congress (its presidential prerogative)
← Pardon power applies to both accused and convicted persons.
• President’s pardon power is limited to Federal offenses (offenses against the United States):
i. Only for Federal liability, never for state liability (i.e., pardon power did not apply where the president tried to pardon someone that committed a state crimes)
ii. Only for Criminal liability, never for civil liability (i.e., Pardon power did not apply where the president tried to pardon someone that was held in contempt in court in a civil case)
• Pardon power does not apply to impeachment cases -two scenarios:
i. President cannot pardon a federal judge, vice president or any executive officer that is impeached, (he can only pardon those that do not go through impeachment process: inferiors)
ii. President can not pardon when the president himself is impeached (i.e., cannot pardon his executive officers for crimes that led to him being impeached)
4. Veto Power
Every act of congress must be presented to the president for his approval or veto. If the president vetoes (disapproves) an act of congress, the act may still become law if the veto is overridden by a two-third vote of each house.
← The president has 10 days to exercise the veto power. If he fails to act within that time, the bill will become law if congress is still in session. If the congress is not in session, the bill is automatically vetoed (pocket veto)
← The veto power allows the president only to approve or reject a bill in whole (in toto); he cannot cancel part or provision and approve other parts and provisions (“line item veto” which gives the president the power to cancel statutory provisions of new federal legislation is unconstitutional b/c it violates the presentment clause)
5. Powers as Chief Executive for internal affairs & Commander in chief for external affairs:
In determining the validity of presidential actions as chief executive Justice Jackson’s opinion in Youngstown sheet v sawyer provides the following guidelines:
1. If the president acts pursuant to the express or implied authority of congress, his authority is at its maximum and his actions likely are valid
2. if the president acts where congress is silent, there is a twilight zone where the president and congress may have concurrent powers and congressional indifference or acquiescence may invite a measure of independent presidential authority (i.e., presidents action will be upheld unless it usurps the power of another governmental branch or prevents anther branch from carrying out its tasks; and
3. if the president acts against the express will of congress, his power is at its lowest ebb and his action likely is invalid
• The president has no power to refuse to spend appropriated funds when congress has expressly mandated that they be spent (president has a duty to act when congress expressly said so. if congress leaves it at presidents discretion, then president has the discretion to not to spend)
• President has no power to order seizure of still mill in preventing strike to support a war when congress has expressly specified no seizure of still mill.
• The best way to support and uphold president’s action is rely on some grant of power
• Separation of Power Doctrine: the doctrine of separation of power demands a diffusion of power among the three co-ordinate branches of government. This principle is violated if one branch of government encroaches upon the powers of another branch and thereby aggrandizes its powers at the expense of another branch.
2- Foreign Affairs Power
1. Treaty Power
Treaties are agreements between the United State and a foreign nation that are negotiated by the president and are effective when ratified by 2/3rd of the Senate
If a treaty conflicts with:
1. State law ( treaty prevails
i.e., Canada & US enter a law that prohibits hunting of eagles. Alaska ha a law that says hunting is allowed. Alaska law will be trumped.
2. Federal laws (congressional law) ( the last in time prevails
3. United States Constitution ( Treaty is invalid
2. Executive Agreements (EA)
EA is an agreement between the Untied States and foreign nations that are negotiated by the president and are effective when singed by the president and the head of the foreign nation. EA do NOT require Senate approval.
• EAs can be used for any purpose – anything that can be done by a treaty can be done by an executive agreement (president nominates it that it is EA or Treaty)
• If an EA conflict with
1. State law ( EA prevails
2. Federal law ( EA is invalid
3. U.S. Constitution ( EA invalid
• Treaties are subject to constitutional limits. Thus, no treaty (or EA) can confer on congress authority to act in a manner inconsistent with any specific provisions of the constitution.
• Court has never held a EA unconstitutional.
HIERARCHY OF U.S. LAW
|United State Constitution |
|Prevails over |
|Treaties and Federal Statute (if |
|a conflict between these two, |
|last in time prevails) |
|Prevails over |
|Executive Agreements |
|Prevails over |
|State law |
3. Commander in Chief - War
Under article 2 section 2, “the president is the commander in chief of the army and navy, and of the militia of the several states when called into federal service by federal congress.” However, the president has no power to declare war but may commit the troops to repel a sudden attack on the Untied States or to suppress the war without congressional declaration of war. (This commander in chief power also goes hand in hand with chief executive 3-prong test of Justice Jackson in Youngstown sheet)
• Congress may limit the president under congress’s power to enact a military appropriation every two years, may limit the president. (a military appropriation may not be for more than 2 years)
• The president has broad powers as commander and chief to use American troops in foreign countries.
• President can never declare war; he can take the troops overseas without a formal declaration of war and then get the congress to authorize the war, or on essay find an act or treaty to justify president’s going to war before getting congressional approval (i.e., joint resolution Act after 9/11)
• Under “Joint Resolution Act “the president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001
• Essay Exam Tip: 3 arguments to support and uphold president’s actions in starting a war without congressional approval: 1-“president may have acted pursuant to treaties which authorized such intervention to aid a U.S. ally under attack”, 2-“the president acted in a preemptive strike in anticipation of an enemy attach”, 3- “the president acted pursuant to “Joint Resolution Act” (or any other act) expressly or impliedly authorizing the president to act under such circumstance.”
• MBE Exam Tip: fact patters present presents the president putting troops in a foreign country w/o declaration of war. The best answer is action must be dismissed b/c it is a political question. 2nd best answer is the president has broad power to use troops in foreign countries.
3- Executive Privilege & Immunity
1. Privilege
The executive privilege is not a constitutionally mandated privilege, however, presidential documents and conversations are presumptively privileged and that the privilege must yield to other important governmental interest
• Regarding military, diplomatic or sensitive national security secrets, the president has an absolute privilege to refuse to disclose, on the other hand, all other matters (i.e., president and his advisors confidential communication), relating the ongoing criminal investigation is presumptively privilege and such privilege is overcome where a substantial need for such information is demonstrated and that there is no alternative means to obtain them. However, the court will determine in an in-camera inspection, which communications are protected and which care subject to disclosure.
i.e., Nixon tried to use executive privilege, but USSC held that the need for evidence in a criminal trial outweighs executive privilege.
• A federal statute requiring the Administrator of General Service to screen the presidential papers is valid, notwithstanding the privilege
2. Immunity
The president has absolute immunity from civil damages based on any action he took within his official responsibilities, however the president has no immunity for acts that he may have committed before taking the office.
i.e., Jones v. Clinton said that the president has no immunity for acts that occurred prior to taking office.
• Immunity of Aides: Presidential aides that have exercised discretionary authority for the president in “sensitive” area of national concern (such as foreign affairs) may share in the immunity for suits brought in that area. Other aides are entitled to qualified immunity (a “good faith” defense)
4- Impeachment
The president, Vice president, Federal Judges and officers of US are subject to impeachment for treason, bribery, or for high crimes and misdemeanors.
House of Rep has the sole power of impeachment, which requires the majority vote. Once the House impeaches, there will be a trial by Senate which requires a 2/3rd vote to convict.
Part II: Liberties
A) Incorporation Doctrine
B)
C)
D)
Bill of Rights
Application of Bill of Rights to States – Doctrine of Incorporation
The Bill of rights (first 10 am) as originally adopted, applied only to the Fed Gov, but after adopting the 14th am in 1868, those amendments of the Bill of rights that are “essential to liberty,” are made applicable to the state through the Due Process clause of 14th am.
➢ Essay Tip: whenever you have a fact pattern that a state or local government is allegedly violating a Bill of Rights provision that has been incorporated, always early in the essay say:
“Here state is attempting to regulate “X”. Because X is protected by Xth amendment and which is “fundamental to our American scheme of justice”, under the doctrine of selective incorporation, this amendment is made applicable to the state and local governments through the incorporation of Due Process clause of 14th amendment”
Rights that are incorporated
All of the 1st amend rights
• Speech
• Press
• Assembly
• Right to petition
• Free exercise of religion
• Non-establishment of religion
The 4th amend rights
• Unreasonable search & seizure
- Privacy rights
Some of 5th amend rights
• Privilege against self incrimination
• Compensation for taking of private property for public use
All of the 6th amend rights
• Speedy and public trial by impartial jury
• Compulsory process
• Notice of charge and right to confrontation
• Right to legal counsel in all serious criminal proceeding
Some of the 8th Amend rights
• Cruel and unusual punishment
• Excessive bail
• Excessive fine (excessive fine provisions are assumed to be but there is no precise ruling)
Rights that are NOT incorporated
The 2nd amend right
• Right to bear arms
i.e., states and local govs can enforce any gun control they want w/o worrying about a 2nd amend challenge
The 3rd amend right
• Right not to have a soldier quartered in a person’s home
i.e., states may force residents to quarter soldiers in their homes
Some of 5th amend right
• Right to grand jury indictment in criminal cases
i.e., B4 a person can be tried for a federal crime, there has to be grand jury indictment, but states do not have to use grand juries if they don’t want to
All of the 7th amend right
• Right to jury trial in civil cases
States can eliminate jury trials in civil cases if they want to
Some of the 8th amend rights
• Right against excessive fines
• 9th amend is not clear since there has never been a ruling. 10th amend, by its terms, limits the fed gov’s power over state, and so is inapplicable to the states
Civil Rights
13th Amendment
the 13th amend prohibits slavery and involuntary servitude. Under the 13th amendment’s enabling clause, congress can prohibit racially discriminatory action by anyone (the government or a private citizen)
14th & 15th Amendments
The 14th amend prevents states (and not fed gov or private persons) from depriving any person of life, liberty, or property without Due Process and equal protection of law. The 15th Amend prevents both the federal and state governments from denying a citizen the right to vote on account of race or color. Private conducts is not prohibited by these amends unless private individuals conduct qualifies as state action. Thus purely private conduct are not prohibited by 14 or 15th amend; however separate constitutional basis may prohibit purely private conduct such as Commerce Clause
← These amends are limitation on state’s power over individuals since thought Due Process clause most of the protections of the Bill of Rights are applicable to the states
Section 5 of 14th amends gives the congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amend. Under section 5, congress may not expand existing constitutional rights or create new rights. It may only enact laws to prevent or remedy violation of rights already recognized by the courts. To adopt a valid law under this power, the legislation must be congruent and proportional (i.e., narrowly tailored) to solving the identified violation.
Commerce Clause: under the broadly construed commerce power, congress may prohibit private racial discrimination in activities that might have substantial economical effect on interstate commerce.
• Since almost any activity taken cumulatively might have a substantial effect on interstate commerce, the commerce clause is an important basis for civil rights violations (e.g., barring discrimination in places of public accommodation are proper and valid exercise of commerce power)
• The reach of the commerce power is broad. Any business which is open to interstate travelers or uses products shipped in interstate commerce is covered (private resort held to be a public place of accommodation encompassed within the Civil Rights Act because drinks and entertainment facilities had been purchased & shipped through interstate commerce
Contract Clause – Impairment of Contract
The contract clause prohibits state or local governments from enacting laws that retroactively & substantially impairs obligations of contract.
• It applies only to state or local interference with already existing contracts. It does not affect contracts not yet entered into
• Contract clause does not apply to federal government. The fed govt can only be sued under Due Process where it is RBR - violate the fifth amendment Due Process clause)
• Contract clause applies only to state legislation, and not court decisions
• In determining whether state legislation is valid under the Contract Clause, if state legislation substantially impairs an existing private contract, the legislation is subject to intermediate scrutiny (IS) and it will be held invalid unless it 1-serves an important and legitimate public interest and 2-is a reasonable and narrowly tailored means of promotion that interest. On the other hand if the legislation impairs a contract to which the state is a party, such public contracts are tested by the same basic test, but they are subject to stricter scrutiny (SS) especially if the legislation reduces the contractual burden of the state
• I.e., Private K: imposing a moratorium on mortgage foreclosure during a severe depression: it did not violate the contract clause
• I.e., Private K: a state statute that restricted underground cola mining to protect a variety of public and private uses of surface land (and buildings) and that left the owners of subsurface mining rights with some reasonable value in, or return from, their investment does not violate the contract clause
• I.e., public K: there is no substantial impairment if the state has reserved the power to revoke, later, or amend either in the contract itself or in a statute or law the terms of which should be considered to be incorporated in the contract
• I.e., if a state or local govt tries to get out of its own K’s w/out paying damages, it must meet strict scrutiny
• In determining whether the law serves as a legitimate public interest, note that the state cannot be obligated by contract to refrain from exercising its police power necessary to protect the health and safety of its residents
EX POST FACTO LAWS
The state or federal government my not pass ex post facto laws. Ex Post Facto Laws are laws that retroactively alter criminal offenses or punishment.
Laws that are Ex Post Facto are specifically 1-laws creating new crime, or 2-increase punishment, or 3-reducing required evidence or burden of proof.
I.e., statute that make criminally punishable an act that was not crime when it was committed is Ex Post Facto Law and unconstitutional.
i.e., FL has sentencing punishment for sexual battery of 2 years imprisonment. D committed the crime and the sentencing is changed to 4 years. The Ex Post Facto clause prohibits imposition of the new sentencing on D since the new sentencing increases punishment than existed on the date D committed the crime.
i.e., a law that raises the age of a sexual abuse victim whose testimony need not be corroborated for a conviction is an expos facto law & unconstitutional
Procedural changes that do not affect substantive elements are not Ex Post Facto.
➢ MBE Tip: For the ex post facto clause to be the right answer it has to be a criminal case where the govt changes the law after the conduct. It is always the wrong answer when dealing with the Contracts Clause (Ex Post Facto Clause applies only to criminal cases.) i.e., denial of a professional license, contractual obligations are never be Ex Post Facto
Bill of Attainder
Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state government are prohibited from passing bills of attainder
i.e., Landrum-Griffin Act that make it a crime for a member of the Communist Party to act as an officer or employee of labor union is a legislative punishment of members of Communist party and it is unconstitutional as bill of attainder
i.e., congress passed legislation to authorize government to control the presidential papers and tape recordings of former president Nixon. This is not a bill of attainder b/c the act is non-punitive (is not punishing Nixon) and also it is in pursuant of important public policy
Due Process Considerations
If a retroactive law does not violate the Contracts, Ex Post Facto, or Bill of Attainder Clause, it still must pass muster under the Due Process clause.
• When a retroactive law does not relate to a fundamental right, the law will be upheld so long as it is rationally related to a legitimate government interest. i.e., socio-economic legislations are upheld so long as they are rationally related to a legitimate government interest. (Its an easy standard to meet since almost anything can be rationally related to government’s legitimate interest)
i.e., a retroactive tax law will be upheld as long as the retroactive aspect of the law are rationally related to legitimate government interest
i.e., retroactive legislation affecting merely a remedy does not violate Due Process (e.g., repealing or extending s statute of limitation), unless it would oust an already vested property interest
i.e., employers may be compelled to compensate former employees for work connected diseases even if the employment terminated before the compensation statute was passed
The Taking Clause
1: Definition: The 5th Amendment provides that private property may not be taken for public use without just compensation. This prohibition is made applicable to the states and local government through the incorporation of Due Process clause of Fourteenth Amendment. The threshold question is whether government action amount to an unconstitutional taking for which just compensation is due, or whether the regulation is a valid exercise of (state’s police power under 10th amendment to regulate for the heath, safety, moral or general welfare of its citizens). The validity of “state X’s” regulation depends on the following questions: 1- whether the “taking” is for “public use”, 2- whether the “regulation” amounts to a physical, regulatory or unconstitutional exaction, 3- if taking is found, what are (’s remedies and measure of damages.
• The taking clause is not a source of power for taking, but rather is a limitation
• Taking includes not only physical appropriations but also some government action that damages property or impairs its use. i.e., frequent flyovers by airplanes near airport
• Intangibles may also be subject of taking i.e., government requirement that trade secret be disclosed may be a taking where government takes and discloses the secret in such a way that it diminished the secret’s economic value and interferes with reasonable, investment-backed expectations of its holders.
• There is no constitutional requirement that than item have positive economic or market value to constitute property, i.e., worthless property is still property and is subject to taking clause. I.e., even interest on atty-client trust account is economically worthless to the client since the cost of book keeping would eat up all the interest earned, the interest is still the client’s property and is subject to the taking clause
2: Is it for Pubic Use?
The government may only take private property for public use. However “Public Use” is broadly defined. In a recent Supreme Court decision, Kelo v City of London, justice Stevens found that the “public use” requirement in the taking clause includes a “public purpose” even though the plan was intended to increase job and tax revenue rather than remove blight. In dissenting opinion, justice O’Connor limited public use requirement to 3 distinct categorizes:
1. “Public Ownership” (i.e., for road, hospital or military bases),
2. “Common Carriers” (where private property is transferred to private parties such as common carriers for public use i.e., railroad, public utility or a stadium),
3. “Exigencies” (to eliminate an existing harm as in eradicating blight caused by extreme poverty)
• Generally, a use will be held to be “public” as long as government’s action is rationally related to a legitimate public purpose including health, welfare, safety, moral, social, economic, political, or aesthetic ends
• Taking must be for the public use. This is broadly defined: government may even authorize a taking by private enterprise, if they redound to the public advantage (e.g., railroads and public utilities): Standard – A taking is for public use so long as the govt acts under a reasonable belief that the taking will benefit the public.
• Hawaii case - taking property from the few wealthy landowners and distributing property amongst a large number of people. SC held it was a public use b/c govt reasonably believed distributing ownership would benefit the public
• City of BH taking Hanmi Bank on Wilshire BL. to build a luxury hotel is for public use - taking (eminent domain power - public purpose is construed broadly i.e., to make that whole block more profitable; tax and revenue raising purpose)
3: Whether the “regulation” amounts to a Taking
A taking may be possessory or regulatory.
1-Possessory taking occurs when there is a permanent physical occupation or invasion of private property by the government or its authorization, regardless of how slight it might be, except in emergency situations. (Loretto case) .
2-Regulatory taking may occur in one of the following ways:
1:If the government regulation denies a landowner of all economically viable use of the property, the regulation is subject to per se rule of taking unless principles of nuisance or other pre-existing property restriction existed when the owner acquired the property. (Lucas case)
2:On the other hand, if the regulation merely decreases the values of the property, the regulation is not subject to per se rule of taking and rather the standard of evaluating the regulation is based on essentially ad hoc factual inquiries (Penn Central test: Zoning regulations, takings, passing leaflets in shopping centers) and in this settings court will balance:
1-the character of gov action i.e., the social goals sough to be promoted
2- it’s economic impact i.e., the diminution in value to owner
3-the degree of interference with owner’s reasonable (IBE) investment backed expectation
3: However, when the government conditions the issuance of a permit on owner’s dedicating some land for a public use, such demands are unconstitutional exactions under 5th amend unless gov can show (Dolan v city of Tigard):
1- an essential nexus between the permit condition and the legitimate state interest, and
2- a rough proportionality between the condition imposed and legitimate state interest
3- a quantifiable finding that would support the reasonableness of the condition imposed
4: Remedies and Measure of Damages
the right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” When a land use regulation constitutes a taking, “as with X’s regulation”, the owner may
1- Sue the government to terminate the regulation and seek compensation even for temporary taking damages, or
2- Sue the government for inverse condemnation and seek compensation for the value of the property. “Just compensation” clause entitles the owner to the fair market value of the property at the time of the taking. Additionally, the test is ordinarily a loss to the owner, rather than a gain to the taker
• Essential Nexus: gov’s demand must be rationally connected to some additional burden that proposed project would place on public. (Dedicate a strip of land for street widening must show increased traffic)
• Rough Proportionality: gov must not demand too much. The required dedication must be reasonable both in nature and extent (the amount of exaction), to the impact of the proposed development.
• Ordinance requiring LL to allow installation of cable TV in their rental unties is an actual appropriation and is a taking (Lorettro)
• Statute abolishing rights of descent and devise of property, although government has broad authority to regulate this area, is a taking (Hodel v. Irving) (Abolishing inheritance rights is a taking)
• Does not matter how small the property is. I.e. NY required apartment owners to make space for cable boxes. Court held it was a taking, but did not provide that much compensation b/c the amount taken was so small.
• Physical invasion also includes moving soil, water or objects onto the (’s property.
• BZ: permanent physical occupation is a type of invasion that is qualitatively more intrusive than any other category of property regulation.
• No compensation was required when the state ordered the destruction of cedar trees that threatened to spread disease to apple orchards
• No compensation was required when federal troops destroyed oil facilities to prevent them from falling into enemy hands – military operations fall within the necessary and emergency exception to physical takings
• Condemnation of land to build highway is a taking
• Creating public access easement on private property is a taking
• Ordering destruction of diseased trees is a valid regulation
• Government actions regulating landmark sites, and landmark ordinances is a valid regulation
• “Prevention of harm” or “noxious use: a regulation rather than a taking is likely to be found where the property use being prevented is one that is harmful or “noxious” to others, such as private or public nuisance may be barred by regulation (when it is classified as regulation, there is no need for compensation. (Total restriction of use of land in Wrongful use of land-( no taking, its rather regulation and no need for compensation)
• A temporary denial of all economically viable use of property does not constitute a per se taking. Instead, the court will carefully examine and weight all the relevant circumstances, including the planners good faith, the reasonable expectation of the owner, the length of the delay, the delay’s actual affect on the value of the property, in order to determine whether “fairness and justice requires just compensation”
• I.e. property owners were temporarily not allowed to develop b/c of a moratorium on development for environmental reasons, or a temporary moratorium by gov agencies on the development of substantial portions of private property for the legitimate purpose of devising a comprehensive land-use plan is not automatically subject to the per se rule of taking. Such restrictions are subject to the balancing rule set forth in Penn Central. (Tahoe-Sierra case)
• a regulation enacted after ( buys his land prohibited building on the land is a depreciation of all economically viable use of land and thus is a regulatory taking - State’s zoning ordinance, adopted after owner purchased lots, amounted to a taking b/c the ordinance prohibited owner from erecting any permanent structure on his lots
• When the regulation decreases economic value (balancing test), the regulation is a taking only if it unjustly reduces the economic value of the property i.e., the more drastic reduction in value and less or slight promotion of public welfare, the more likely it is to a taking
• Statute prohibiting coal companies from mining under property: If the prohibition is designed to protect only the economic interest of a limited group of building owners and the reduction in the value of the mining company’s mineral rights is almost 100%, the regulation is a taking of property for which compensation is due. On the other hand if the statute promotes a public purpose because a danger of subsidence threatens a variety of public and nonpublic buildings, and diminution in the value of the mining company’s right is not extreme, the statute restriction the mining activities may be permissible regulation for which no compensation is due.
➢ Exam Tip: gov regulation is not a taking simply b/c it decreases the value of a property. When it merely decreases the value, there is a balancing test that determines whether taking has occurred. Government regulation becomes a per se taking only if it leaves no reasonable economically viable use.
• I.e., Penn Central NY planned to add additional structure on top of property; it was declared a historical landmark so they could no longer build. SC found owners still had economic viable use of the building that was there so there was no taking.
• I.e., (Lucas) state law adopted a plan that prevented any development of (’s land. SC ruled that preventing any development or economic use is a regulatory taking.
• There is no pre-emption issue when state does not want to follow fed rule of taking because state can gives more protection to its citizens than what fed law requires (federal rights are floor, not a sealing( rights cannot go lower than federal floor
• A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. There is no expiration on takings claims
• Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable.
• Exam Tip: In shopping center cases (Prune Yard v Robins), watch out for free speech issue and taking issue. Most of the times free speech issue goes hand in hand with taking issue i.e., passing leaflets and interference with property. (Penn central framework and then 1st amendment framework)
II) Individual Liberties
Substantive Due Process & Equal Protection in general
The substantive Due Process guarantees that laws will be reasonable and not arbitrary, and equal protection guarantees that similarly situated persons will be treated alike. Both substantive Due Process and equal protection guarantees require the court to review the substance of the law rather than the procedure employed.
( Substantive Due Process: generally where a law limits the liberty of all, (or any) persons to engage in some activity, it is Due Process question.
( Equal Protection: where a law treats a person or a class of persons differently from others, it is an equal protection question.
i.e., if a law prohibits all (“all” is the key word) persons from purchasing contraceptive devices, there is a Due Process issue; if the law prohibits only purchases by unmarried persons (“unmarried persons” is the key word: a class of persons), there is an equal protection issue.
i.e., a state’s refusal to have any publicly funded school raises a (“any” is the key word) Due Process issue; a state law that establishes separate schools for children of different races raises an equal protection issue (“of different race” is the key word here).
Since both clauses protect against unfairness, both may be appropriate challenges to the same governmental act, and a discussion of both may be appropriate in an essay exam. On the MBE, however, the examiners will probably not include both as alternatives in the same questions.
➢ Due Process and equal protection questions also commonly test your knowledge of which party bears the burden of proof. Know the standards and their respective burdens.
➢ Substantive Due Process asks whether the government has the required substantive reason (a good enough reason depending on the standard applied) to take a way a person’s life, liberty, or property.
Standard of Review – memorize word for word
Rational Basis Test (RBR)
Socio economic regulations (regulations that do not affect 1-fundamental rights, or 2-involve suspect or 3-quasi-suspect classification) are reviewed under the rational basis standard. Under rational basis test, a law is upheld if it is
1-rationally related to a
2-legitimate government purpose.
I.
1- “Rationally related” = loosely related (does not need to be narrowly tailored like IS, nor does it need to be the less restrictive means like SS)
2- “Legitimate purpose” = something permissible. Court does not even expect that the actual purpose be a legitimate one, as long as there is some permissible purpose.
• This is a very easy standard to meet and the law is generally presumed valid unless it is arbitrary, capricious and irrational
Rational Basis test applies to regulations that do not affect a fundamental right, or involve suspect or quasi-suspect classification. Laws dealing with age, disability, poverty, business and economic are evaluated by rational basis test.
Burden of proof is on the person challenging the law. ( has to show that there is either no conceivable legitimate purpose or the law is arbitrary or irrational.
i.e., city decided that advertisement on motor vehicles are traffic hazards ; so it banned such advertisements except for those on vehicles advertising the owner’s own product. The law is upheld since it arguably helps promoting sell of product by the owner (neither arbitrary nor irrational)
i.e., taxing a new homebuyer in a neighborhood differently than the already owned homes in that neighborhood involves a socio economic activity and thus are reviewed under BRB: “a” reason will suffice
Intermediate Scrutiny (IS)
Regulations involving quasi-suspect classifications (1- gender and 2-legitimacy) are reviewed under intermediate scrutiny standard. Under intermediate scrutiny standard, a law is upheld if it is
1-substantially related to
2- an important government purpose
1- “Substantially related” = means used must be narrowly tailored to achieving the objective (it does not have to be the least restrictive alternative available that SS requires, it must only be narrowly tailored i.e., “a good way of obtaining the goal” will do)
2- “Important purpose” = objective has to be more than merely permissible and court will look to “actual” objective
Intermediate scrutiny applies to regulations involving quasi-suspect classifications i.e., gender or legitimacy
Burden of proof is on the government
➢ MBE questions ask you about the standard that the court will use to review the governmental regulation. ( you need to know which standard will apply in a particular case (e.g., if a fundamental right involved, strict scrutiny is applied). However, the choices usually do not name the standard (“strict scrutiny”) but merely state it (“upheld if necessary to a compelling government interest”). Be prepared to recognize the standard by name or definition
➢ When you get to 1st amendment, the word “important” is interchangeable with “significant”
Strict Scrutiny (SS)
Regulations affecting fundamental rights (1-privacy, 2- travel, 3-voting and 4- 1st amend rights: religion and speech) or involving suspect classifications (1-Race, 2-National origin (ethnicity), 3- Alienage) are reviewed under the strict scrutiny standard. Under this test, a law will be upheld only if
1-it is necessary to achieve a
2-compelling government purpose
1- “Necessary”: means used must be necessary to achieve the ends. In other word, gov must show that no less restrictive alternatives could be used to accomplish its purpose. (there must be no less restrictive alternatives available to accomplish that purpose)
2- “Compelling purpose”: goal has to be more than legitimate (persuasive), or important (substantial). Goal must be vital and compelling. Court will only look at actual objective.
Strict scrutiny applies only to regulations affecting fundamental rights, and suspect classifications
Government has the burden of proving that the law is necessary. The court will not allow a loose fitting law i.e., if a law reaches more people or conduct than is necessary (over inclusive) or does not reach all of the people or conduct sought to be regulated (under inclusive), it will likely be struck down.
• Suspect classifications (Race No Ali): Race, National Origin, Alienage
• Fundamental rights: 1- Travel, 2-Voting, 3-Privacy, 4- Religion, Speech & association
State Action
Essay Writing framework
1. Give Complete Definition
2. Fist, whether state action exists under Public Function doctrine
3. Second, whether state action exists under “significant state involvement” theory
4. Reach a conclusion one way or another and proceed to Due Process rights, head note each of them i.e., substantive Due Process, Equal protection, Procedural Due Process
← Anytime there is a private party on the fact pattern violating a constitutional right, there is a big state action issue argument. Don’t forget, on con law exams, you must chew the facts and argue both sides; nobody cares about your conclusion.
Congress, by statute, may apply constitutional provisions to private conduct:
1- Pursuant to 13th am, congress can prohibit private race discrimination
← Discrimination, no matter how vile, NEVER violates the 13th itself. ONLY slavery violates the 13th. However discrimination can violate federal statutes adopted by congress under the 13th amend.
2- Pursuant to Commerce Power, Congress can apply constitutional norms to private conduct
← Private hotels and restaurants can’t discriminate based on race i.e., Heart of Atlanta: commerce power can prohibit private parties from racial discrimination; discriminated there was a substantial cumulative economic effect on commerce ( Congress used its commerce power to apply norms of equality to private acts
3- Remember – Congress cannot use § 5 of the 14th amendment to regulate private behavior
i.e. Morrison – violence against women act. crt said that when congress acts under § 5 it cannot regulate private behavior; it can only regulate state and local gov
- Congress, under § 5 of 14 am cannot create new rights or expand the scope of the rights. Under § 5 Congress may only enact laws to prevent or remedy violations of rights recognized by the court. Such laws must be narrowly tailored to preventing or remedying constitutional violations; in the court’s word, the law must be “proportionate” and “congruent” to the problem
State Action
The constitution generally prohibits only intentional acts of the government, which infringes upon protected individual rights. State action is the threshold requirement of governmental conduct, which must be satisfied before private acts can be punished under the 14th and 15th amendments. As a general rule, state action can be found in the actions of seemingly private individuals who 1-perform exclusive public function, or 2-have significant state involvement in their activity, or 3-when gov has enforced racially discriminatory decisions of private parties
i.e., if Chemerinsky, as a USC employee, speaks badly about USC president, he could be fired and would have no freedom of speech claim b/c private action. if he worked for UCLA, he could be fired b/c that would be gov action regulating speech
← One way beside state action that federal gov can regulate private activity is through commerce clause if applicable
← States (and not federal gov) can regulate private activities (i.e., Unruh civil right act by state says that open public facilities cannot discriminate based on …..)
1. Exclusive Public Functions
Under the public function doctrine, state action exists and hence the constitution applies to a private entity if the private entity is performing a task that is traditionally and exclusively performed by the government, such as running a town or an election for public office.
← Only running a 1-town, or 2-Park and 3- running an election for public office qualifies as public function
i.e., Marsh v. Alabama: a private company owned an entire town and throw out a Jehovah’s witness that was passing literature in town. Crt said running a town is traditionally done by the gov. Town’s street, although privately owned, were really the equivalent of city street. When a private entity performs a public function, it must meet constitutional standards thus the town’s action were in violation of 1st and 14th amend (company town is equivalent to a town)
← Contracts: owner of shopping mall can deny people their 1st amend rights to picket since a mall does not have all of the attributes of a town (Hudgens v. NLRB)
i.e., Operation of Park is considered an exercise of public function (Evans v. Newton)
i.e., Holding an election, even a primary election, is a function that is the exclusive prerogative of the gov and has been traditionally and exclusively performed by the gov ( the private political entities must follow the constitution (Smith v. Allwrigh)
i.e., a privately owned utility company decided to terminate customer service. Utility had a monopoly. Crt said that public function does not apply b/c utilities are commonly run by private institutions
Must be Traditionally and Exclusive function: to be state action, the activity must be both a traditional and exclusive gov function.
i.e., a warehouse authorized by statute to sell good stored in the warehouse for unpaid fees is not exercising state action b/c while the resolution of private dispute is a traditional public function, it is not exclusive since the bailor had state law remedies to check abuses by the warehouseman.
← state action exists, and Due Process guarantees apply, only if the creditor uses judicial or executive agencies to secure properties in possession of debtor.
2. Significant State Involvement – Facilitating Private Action
State action exists and hence the constitution applies to private entity if the acts between the state and the private actor are so pervasively entwined and sufficiently connected that the state can be said to have affirmatively authorize, encourage, or facilitate the unconstitutional acts of the private entity. (Brentwood Academy v Tennessee Athletic Association)
• In other word, the mere fact that a state entity helps formulate or adopts the rules of a private entity does not convert the private entity’s action into state action. but, if a state is so pervasively entwined with the structural operations of the private entity in a matter that the actions and decisions of the private entity are fairly attributable to the state, then its action will constitute sufficient state involvement to trigger state action
It is not enough that the state permits the conduct to occur but rather there must be some sort of affirmative act by the state approving, facilitating, or enforcing the private action. (there must be Sufficient nexus)
i.e., Brentwood v Tennessee: an association that regulates high school sport within a single state: 1-to which most public high schools belong, 2-whose governing body is made up mostly of public officials, 3-whose meetings are held during regular school hours, 4-whose employees may join the state retirement system, and 5-which is funded by gate receipts from the regulated sports is so pervasively entwined with the sate that its action can constitute sufficient state involvement to trigger state action
Exam Tip: there is state action when a private entity regulates interscholastic sports within a state. (no state action if the private entity regulates sports across the county) On Essay, make sure to count and flash out each and every one of the contacts (inter connections) (just like minimum contact in civ pro) – Q is whether there is sufficient state involvement
Exam Tip: The state must be “significantly involved” in the private entity (like almost become a joint venture). Mere acquiescence by the state in private conduct is not enough. They are not constitutionally required to outlaw discrimination. They are only forbidden to facilitate, encourage, or authorize it.
1) Significant State Involvement Exists:
Pervasive Entwinement of State and Private Entities (Brentwood v Tennessee; count the factors; nexus)
There is state action when the government is the Lessor of a Racially Discriminatory Lessee (symbiotic relationship – Burton v. Wilmington Parking Authority: state ran a parking garage and rented space to a restaurant that discriminated: Because 1-the restaurant was located on public building, 2-leased from government, 3-the maintenance of the facility was paid for with public funds and 4- thereby the gov was able to charge higher rent, there was a symbiotic relationship between the state as lessor for a racially discriminatory lessee and such relationship constitute sufficient state involvement to trigger state action
There is state action when a state provides free books to schools that racially discriminate i.e., Harrison – State of Mississippi adopted a program to give free books to all schools in the state. crt said that either the private schools would have to desegregate or gov could not give them free books
Official Encouragement/ judicial Approval or Enforcement: Seemingly private action will be given state action status if the action is encouraged, sanctioned or enforced by the state
i.e., Racially Restrictive Covenant:
State court enforcement of racially restrictive covenant constitutes sufficient state involvement to trigger state action (Shelly Kraemer)
I.e., Peremptory Challenge: the use of peremptory challenge, even by a private party, constitutes state action b/c 1- jury selection is a traditional public function & 2-there is over, significant participation by the government (the judge) in the jury selection process.
i.e., Acting under Color of law: The actions of the cop involves “state action” because cops act under “the color of state law – the state in effect cloaked him with the apparent legal authority i.e., a cop beat a prisoner to death to get a confession. Both the state and the sheriff were held liable.
But ( a public defender does not act for the state when representing an indigent client. Negligence or malpractice by the public defender is not a denial of Due Process b/c his action are not “state action”
2) NO State involvement exists:
1. Granting liquor license:
Granting liquor license to a private club that racially discriminates is NOT sufficient to constitute state action (Moose Lodge)
2. Providing Essential Service such as police, fire, water, power and etc to a private club that racially discriminates are NOT sufficient to constitute state action (Moose Lodge)
3. Government subsidy is not sufficient: There is NO state action when a private school that is over 99% funded by the gov fires a teacher because of her speech
( Gov subsidy is NOT sufficient to constitute state involvement
4. Heavily Regulated by government is not sufficient
i.e., Electric Company” state action will not be found merely because the state has granted a monopoly to a business or has heavily regulated the activity.
5. Granting of Monopoly to a Utility is not sufficient
i.e., Electric Company: Jackson v. Metropolitan Edison: termination of service to a customer without notice or a hearing by a utility company under heavy state regulation does not constitute state action. even the state had heavily regulated the business, the state had not directed or ordered the termination and the mere fact that the state commission had approved the regulations authorizing such termination are not sufficient state involvement to trigger state action.
i.e., Nursing Home: a nursing home operated by a private corporation did not exercise state action when discharged Medical Patients, even though it operation was extensively regulated by the gov
i.e., School: a school operated by a private corporation did not exercise state action when it discharged teachers (allegedly in violation of their 1st am) even though the school had contracts with the state to educate or care fro may of its students and it received almost all of its operating funds from the government
6. Congressional Grant of Corporate Charter
- Granting Exclusive name
Congressional grant of a corporate charter and exclusive use of a name is not sufficient to constitute state action – congressional charter and grant of exclusive name “Olympic” does not clothe United State Olympic Committee with state action. San Francisco Arts v US Olympic Committee
7. NO Government Duty to Protect Individuals from Harm by Private Persons
The mere refusal of government agents to protect a victim from harm by a private person will not result in a finding that the har was attributable to “state action,” at least when state law does not give the victim a right to government protection.
i.e., DeShaney v. Winnebago Social Services: government not responsible for harm inflicted on a child by his father, even though the government social worker had reason to believe the child was being abused and did nothing to protect the child. However, if government employees entered into an agreement or conspiracy with private person to cause harm to a victim the victim’s injuries are the result of state action; the private persons, as well as the government employees with whom they conspired, will have violated the victim’s constitutional rights (Dennis v. Sparks)
← Court seems to be willing to find entanglement when race is involved, but unwilling when other discriminations are involved
← Constitution applies to gov officials on all levels, federal, state or local
← When creditors ac pursuant to state statue that authorize the property of their debtors to be attached for sequestered wi the aid of a state official, the private person’s “joint participation with state officials is sufficient to characterize that person as a ‘state actor’ for purposes of the 14th amendment
|State Action vs. No State Action |
|State Action |No State Action |
|Public Function |
|Running a town |Shopping mall |
|Conducting an election|Warehouse linen |
| |sale, foreclosure |
|Significant State involvement |
|Enforcing restrictive |Granting a license |
|covenants through use | |
|of state court | |
| |Providing essential |
| |services to private |
| |C |
|Leasing premises to |Granting a monopoly |
|discriminatory lessee |to utility |
|where state derives | |
|extra benefit from the| |
|discrimination i.e., | |
|symbiotic reltion | |
| |Heavily regulating |
| |an industry |
| |Granting a Corp. its|
| |charter |
|State official acting |Granting exclusive |
|in discriminatory |name |
|manner under color of | |
|state law; public | |
|officials acts | |
| | |
Substantive Due Process- framework
1) Definition: Substantive Due Process is a “liberty” interest under the “liberty” phrase of the Due Process clause of 5th and 14th amendment and which can be ascertained by inquiring whether the asserted right is deeply rooted in this nation’s history and tradition and is implicit in the concept of ordered liberty so that neither liberty nor justice would exist if it were sacrificed. These implied rights are considered “fundamental” rights and are subject to strictest scrutiny. (Griswold v Connecticut) The court has identified certain rights within the “marital zone of privacy” as fundamental privacy rights, such as
1. right to marry,
2. right of access to contraception,
3. right to procreate; child rearing,
4. right to terminate a pregnancy prior to viability,
5. right of a competent adult to refuse unwanted medical treatment.
6. Additionally, the court has established the right to adopt homosexual sodomy as a liberty interest, but avoid to call this right of adult homosexual sodomy as a fundamental right
Here the right asserted, i.e., child raring, is (/ is not) deeply rooted in ….(may also be analogous to right to marry)….thus X is / is not/ a fundamental right. Next question is what level of scrutiny must be applied
• There is a Substantive Due Process question whenever gov is interfering with a right - any kind of right will do. Limiting, banning, regulating any kind of interest, right, liberty, property or conduct raises SDP Q – this is the question of “is the law fair by applying the required level of scrutiny” . Substantive Due Process asks whether the government has the required substantive reason (a good enough reason depending on the standard applied) to interfere w person’s life, liberty, or property
• In substantive Due Process, you have only two levels of scrutiny for both sides: 1-SS (individual wants to put it as fun rights to trigger SS to win) v. 2-rational bases (gov wants to put is as socio-economy regulation to trigger RBR to win) – there is no intermediate scrutiny in substantive Due Process framework
2) Next question is what level of scrutiny will be applied.
Fundamental privacy rights that trigger SS:
1) The right to marry
2) The right to procreate
3) The right of custody to one’s children
a. The SC has said that under the liberty of the Due Process clause, parents have the right to be w/ their kids
b. Procedural DP requires notice & hearing
c. Substantive DP requires the government to show that there is a compelling reason w/ no less restrictive means to achieve its objective
4) The right to keep the family together – includes the extended family
i.e., Cleveland ordinance kept Grandma from living w/ grandkids. SC said the zoning ordinance is unconstitutional b/c there is a right to keep the family together. To be considered a family, the individuals have to be related. Ordinance would have been constitutional if the people were not related
5) The right to control the upbringing of one’s children
a. Part of a parent’s right to raise kids is to send them to a parochial school
b. SC has said that Due Process is violated if the court grants grandparent visitation rights over the parent’s objection
6) The right to purchase and use contraceptives
BZ: The state interest in not having children be declared illegitimate and the promoting of peace and tranquility of marriage and family is a recognized historical practice of our society.
Fundamental privacy rights that trigger “undue burden”
The right to abortion (SS is no longer the test; the current law is “undue burden test”)
• Rule: Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. On the other hand, after viability, states may prohibit abortion unless necessary to protect the woman’s life or health.
← Viability is the time when fetus can survive outside of the womb.
i.e., requiring 24-hour waiting period for abortions is not an undue burden
i.e., a requirement that abortions be performed by licensed physicians is not an undue burden
i.e., the prohibition of “partial birth abortion” is an undue burden i.e., Nebraska law outlawed “partial birth abortion” w/o providing an exception for those instances when it was necessary to preserve the mother’s health. Further, there was no evidence that the other safe methods were available
• The gov has no duty to subsidize abortions or provide abortions in public hospitals. The constitution never requires that the gov pay for or use its facilities for performing abortions
• Spousal consent and notification laws are unconstitutional b/c 1-it creates an undue burden, 2-the right to have an abortion belongs to each woman
• Parental notice and consent law for unmarried minors: a state may require parental notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion either by finding it would be in the minor’s best interest or concluding that she is mature enough to decide for herself
Substantive DP writing Framework
1- Give complete Definition
2- Your 2nd heading must be: “Next question is what level of scrutiny applies”
3- Third heading is “Next, Does the law meet the level of scrutiny”
4- Fourth and final heading is “Irrebuttable presumptions”, if any
Non Fundamental privacy right that triggers SS
The right of privacy does not include the right to engage in private, consensual homosexual activity. However the govt cannot prohibit this activity absence of compelling governmental interest. The court did not articulate a level of scrutiny for this.
The right to refuse medical treatment by competent adult: competent adults have the right to refuse medical treatment, even life-saving medical treatment, or even food and water
← If patient is not competent, he can be forced to take medical care, food, water, etc
← A state can require clear and convincing evidence that a person wanted treatment terminated before it can be ended
← A state may prevent family members from terminating treatment for another. Crt said the right to accept or refuse treatment belongs to each individual person and family members might have a conflicting interest
• There are two separate clauses protecting substantive Due Process: 2-the Due Process clause of the 14th amend which is applicable to states only, 2- Due Process clause of 5th amd which is applicable to fed only
• Tip: when there is a Due Process challenge to a consumer protection law or if there is a labor law dispute, court will review it under RBR and gov wins. Courts will sustain all varieties of business regulations
• Freedom of personal choice in matters of family life and the institution of the family is one of the “fundamental” liberties protected by the Due Process clause. The institution of family is deeply rooted in the nation’s history and tradition and ordinary zoning regulations interfering with this fundamental right are unconstitutional
• Moral and cultural values which are deeply rooted in our nation’s history and tradition are rights implicitly protected by the Due Process clause and this includes the right to share a household with extended family members
• The biological parent of a child born to a woman while married to another man does not have fundamental right to custody and visitation since such a right is not deeply rooted in this nation’s history and tradition nor is it implicit in the concept of ordered liberty.
• Planned Parenthood v Casey: the trimester framework in Roe v. Wade is no longer operative. Prior to viability, a woman has a fundamental liberty interest protected by the Due Process clause to terminate her pregnancy and the state may not impose an “undue burden” on such a right. Any unnecessary health regulations hat have the purpose or effect of presenting a “substantial obstacle” burden” to a woman seeking to terminate a pregnancy prior to viability will constitute an undue burden
• All except the “spousal notification” requirement were upheld as constitutional. The spousal notification restriction would operate as a substantial burden to women who for fear of physical or psychological abuse may not wish to inform their husbands of their intention to terminate the pregnancy.
• There is no undue burden to require a pregnant minor to obtain one or both parent’s consent to an abortion if the state law provide an alternate procedure i.e., by seeking court’s permission for abortion
• Absent any exception for the preservation of a mother’s health, statutes that ban the use of D&E procedure in partial birth abortions impose an undue burden on a woman’s ability to chose and are unconstitutional. It is not enough if the only exception provided is to save the life of the mother.
• A state court decision granting grandparents visitation rights to their grandchildren, over the objections of the sole surviving parent, violated the parent’s fundamental right of privacy under Due Process right.
• Lawrence v. Texas: the laws and tradition of the past half-century demonstrate an emerging awareness of the liberty of homosexuals to engage in private consensual intimate sexual conduct and as such it is protected under the substantive due process clause. There is no legitimate state interest on moral grounds alone for criminalizing such behavior.
• Cruzan case: (right to refuse unwanted medical treatment by a competent adult is a fundamental right): while a state may claim an unqualified interest in the preservation of human life, an individual who is in a persistent vegetative state has a fundamental right not to be maintained by life supporting treatment. This fundamental right may be found if there is a clear and convincing evidence to show that a decision to terminate life was made by the person prior to lapsing into vegetation state. (state may decide that family members cannot exercise the right when individuals are incompetent to exercise it on their own, absent clear and convincing evidence)
• Washington v Glucksberg: there is no fundamental right to physician-assisted suicide since such a alleged right are not deeply rooted history and tradition of our nation. Thus, state laws criminalizing this activity is reviewed by rationale basis test and since banning physician -assisted suicide laws are rationally related to furthering and preserving lives, states have a legitimate interest to regulate it and therefore criminalizing and banning physician-assisted suicide laws are upheld and constitutional.
➢ Essay Exam Tip: The government wants to put it in the “rational basis test” to win and argues that the interest involved is a mere socio economic right, on the other hand, the individual wants to put it in SS tier to win and argues that the government’s conduct or regulation is one that interferers with a fundamental right (either interferes with:
1. Fundamental privacy rights such as CAMPR – Contraception, Abortion, Marriage, Procreation, Relations (family relations);
2. Interfered with right to travel i.e., road blocks and sobriety test, or
3. Interfered with right to vote, or
4. Interfered with right to free speech, association, or religion
Don’t forget, generally if rational bases test is applied, gov wins. If SS test is applied, gov loses and the action will be struck down. IS may go either way
Non-fundamental interest = RBR
Non-fundamental rights (i.e., socio-economic rights) are reviewed under rational test “RBR” (and generally presumed valid and are upheld unless challenger can show that there the law is not rationally related to any conceivable legitimate government purpose), i.e.,
1) The right to practice a trade or profession
2) The right to education
3) The right to physician-assisted suicide
4) Business & Labor Regulations
5) Taxation
6) Lifestyle
7) Zoning, Property, and takings
8) Punitive Damages
9) High speed chases
Examples:
Business, profession, trade, and labor regulations
The court will sustain all varieties of business regulations, i.e., “blue sky” laws, bank controls, insurance regulations, price and wage control, unfair competition and trade practice controls, etc
Taxation
Taxation is also invariably sustained. However, discriminatory taxes might still be invalidated.
Lifestyle
There is no recognized right to lead a certain lifestyle. Thus, the court upholds laws prohibiting 1-drugs (hard or soft), 2-requiring motorcyclists to wear helmets, 3-or requiring officers to wear short hair
Zoning laws & Takings
Regulation of the ownership or use of property has also been liberally tolerated by the court.
i.e., Long Island suburb ordinance that zone out all group of three or more persons unrelated by blood, adoption, or marriage is upheld (if it zoned out family related ones, then it would be abridging fundamental privacy and would be subject to SS and will not be upheld that easy, i.e., Moor v. city of Cleveland: zoning regulations that prohibit members of traditional families from living together (zoning excluding cousins or grandchildren) violate Due Process.
Punitive Damages
The SC has held that punitive damages, even large punitive awards, do not necessarily violate substantive Due Process (Pacific Mutual life Insurance). However, “grossly excessive” damages, which do not bear a reasonable relationship to compensatory damages and are unreasonable to vindicate state’s interest in punishment, are invalid. (TXO Production v. Alliance)
In evaluating the validity of punitive damages, the court has indicated that it will look to the following factor (BMW v Gore):
1) the degree of reprehensibility of the defendant’s conduct,
2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive award, and
3) the difference between the punitive damages awarded and the criminal and civil penalties authorized for comparable misconduct
High Speed Chases
A high-speed police chase that results in a death violates due process only when the chase is arbitrary or irrational in the constitutional sense. Only a chase that shocks the conscience of the court, (i.e., where the police intended to cause harm), will be found to be sufficiently arbitrary to be unconstitutional.
e.g., there is no Due Process violation where officers chased motorcycle that sped by the officers for no apparent reason and a passenger on the motorcycle fell of and was killed when struck by an officer’s car.
Exam Tip: Usually in regulations that affects non-fundamental activities (i.e., one’s that can be regulated easily - RBR) there might be an issue of Vagueness Doctrine that invalidates the regulation:
Vagueness Doctrine
Under the Due Process clause of the 14th amend, a law can be held unconstitutional if it fails to provide minimal guidelines to govern law enforcement officers so as to encourage arbitrary and discriminatory enforcement.
i.e., a law was held unconstitutional on vagueness grounds on ordinance that allowed officers to disperse suspected gang members when they were “loitering”, which was defined as remaining in any once place with no apparent purpose
Last heading
Irrebuttable Presumptions
If the government “presumes facts” against a person that she is not qualified for some important benefit or right, such presumptions are unconstitutional as a violation of Due Process. In other word, it is a violation of a Due Process (SDP, EP, or PDP) for a tribunal to foreclose issues by conclusively presuming them to be true.
if the presumption affects a fundamental right (e.g., right to travel) or a suspect or quasi-suspect classification (e.g., gender), it will likely be invalid under strict scrutiny or intermediate scrutiny analysis, because the administrative convenience created by the presumption is not an important enough interest to justify the burden on the right or class. If some other classification or right is involved, the presumption will likely be upheld under the rational basis standard.
i.e., a state may not presume a teacher incapable of continuous service in the classroom merely b/c she is four or five months pregnant or has a child under age three .
i.e., the government may presume that a marriage entered into within nine months of a wage earner’s death was simply to secure social security benefits.
- Although the court often characterizes the irrebuttable presumptions as a Due Process question, it is more accurately an equal protection question because the government is creating an arbitrary classification.
( Exam Tip: On essay exam, you must raise and argue irrebuttable presumption after 1-substantive Due Process, 2-equal protection, and 3-procedural Due Process analysis. But on MBE, answer choices that mention irrebuttable presumptions are wrong answer.
MBE Tip: the Supreme Court no longer treats irrebuttable presumptions differently from other regulations or classifications. Thus, if an answer choice says, “invalid because it is an irrebuttable presumption,” it is a wrong answer. In such questions, you must consider whether the regulations concerns a fundamental right or suspect or quasi-suspect class, and then apply the applicable standard of review and judge accordingly.
Equal Protection – framework
1) Definition & Source
Under the Equal Protection Claus of the 14th amend, “no state shall deny to any person within its jurisdiction the equal protection of the laws”. Although Equal Protection Clause of the 14th amend, by its literal terms, applies only to the states, it has been held to have a parallel component in the Due Process clause of the 5th amend which is applicable to the federal government. Hence Equal Protection Clause guarantees against grossly unreasonable discriminatory classifications by the federal and state government. Whether “X” law is upheld under Equal Protection Clause depends on the following inquiries: 1-whether the law involves a discriminatory classification? 2-what level of scrutiny must be applied, and 3-whether the law meets the required level of scrutiny?
• MBE Tip: the 14th amendment never applies to the federal gov
• MBE Tip: There is no provision of the constitution that says the federal government cannot deny equal protection, however SC has said the 5th amendment requires equal protection.
• Racial discrimination in the public schools of the District of Columbia is violation of Due Process under 5th against fed gov
EP writing approach:
Step 1: give definition & Source
Step 2: what is the classification?
1. Proving Discriminatory classification (intent)
2. Showing existence/ type of the classification
i.e., grouping by what?
Step 3: what level of Scrutiny should be applied?
Step 4: Does this law meet the level of scrutiny?
Step 5: irrebuttable presumption (presumptions are arbitrary classifications and violate EP, SDP and PDP)
First, whether the “X law” involves a discriminatory classification
( Essay Tip: only when the discrimination involves Race (SS), National Origin (SS) or Gender (IS), you must give sub heading and discuss De jure v. De Facto (intentional v. unintentional)
De Jure (by law) v. De Facto (facially neutral)
As a general rule, the mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger judicial scrutiny. There must be intent to discriminate on the part of the government. Intent can be shown in three ways: If the law, by its very terms, draws distinction amongst people, the law is facially discriminatory and the court merely applies the appropriate standard of review for that classification to determine whether the law is valid or not. If a law is facially natural but has been administered in a discriminatory manner, (Yick Ho v. Hopkins) proving the existence of discriminatory classification requires showing of discriminatory purpose (and used discriminatory standard based on traits such as race or gender). On the other hand, if the law is neither discriminatory on its face nor has a discriminatory application, but merely has a disproportionate impact on a particular class of person, (Washington v. Davis) such a law will not be found to involve a discriminatory classification unless there is a discriminatory motive behind the law. In such cases, the court may look into statistical evidence as a factor, however statistical evidence alone is not sufficient to prove discriminatory purpose. On the other hand, Statistical evidence coupled with other evidences such as history of past discrimination indicates that the law is a product of discriminatory purpose or at least it was enacted and maintained for a discriminatory purpose.
Here, the law say “X”……
MBE Tip: if the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent
How to do it: Specify each classification separately: on a given fact patter, there are generally several classifications jammed together – separate each type of classification individually, i.e., say that the law involves several classifications: classification #1 is by gender; classification # 2 is by age; classification # 3 is by height; classification # 4 is bachelor degree v. without BA, married v. unmarried, etc (it can be any kind of classification, i.e., people that do not wear glasses, pregnant v non-pregnant, under 18 years v. over 18 years, mentally retarded people, handicaps, tall, etc)
Second, what level of Scrutiny must be applied?
If a suspect classification or fundamental right is involved, the strict scrutiny standard will be applied and the action will be struck down unless the government can show that the law is necessary to achieve a compelling interest and it is narrowly tailored. If a quasi-suspect classification is involved, intermediate scrutiny will be applied and the action will be struck down unless the government can show that the law is substantially related to an importation government interest. If the classification merely involves socio economic regulations, the rational basis standard will be applied and the law is generally presumed valid unless the challenger can show that it is not rationally related to any conceivable legitimate government interest. Here, the law involves ….
Suspect classification ( strict scrutiny: RNA: Race, National Origin (ethnicity), Alienage and Fundamental right: 1-travel, 2-vote, 3-privacy, 4-Speech, Religion, and association
Quasi- Suspect classification( intermediate scrutiny standard: Gender, Illegitimacy
( BZ: When gender is involved, Stereotypical motions and lose fitting generalization cannot be used
All other ( rational basis test: socio economic regulation, taxation, business, industry, production, property, zoning, morals, general welfare, married v. unmarried, with diploma v. without diploma, pregnant v. un-pregnant, under age 18 v. over age 18, advertisement on trucks, bums with pushcarts, handicaps, mentally retarded people, all other activities other than suspect, fundamental right or quasi suspect class, (government wins( the only times government wins on rational basis was1- in gays and lesbians cases where the sole motivation is animosity and bias and was based on passion rather than logic (Romer v Evans) and 2-metally retardation: since there is no logical basis; such classification is based on pure animosity and prejudice (city of Cleburne v. Cleburne living center)
Discriminatory Classification:
i.e., Facial discrimination: all white males 21 or older may serve as jurors. In such cases the court merely have to apply the appropriate standard of review for that classification.
i.e., Discriminatory Application: In some instances, a law that appears to be neutral on its face will be applied in a different manner to different classes of persons. If the persons challenging the governmental action can prove that the government officials applying the law had a discriminatory purpose (and used discriminatory standards based on traits such as race or gender), the law will be invalidated.
i.e., a law prohibited operating a laundry in wooden buildings, but gave a government agency discretion to grant exemptions. It was shown that most such laundries were owned by people of Chinese descent, but the agency granted exemptions only to non-Asian applicants. The law was deemed to involve racial or national origin classification and was invalidated as applied
i.e., Laws allow attorneys to move to strike potential jurors from a jury either for cause or without cause (a preemptory strike). In either case, there is an equal protection violation when it is proved that an atty excluded a person from a jury on account of the person’s race or sex. Note that because striking potential jurors from a jury significantly involves the state, even attys representing private parties are prohibited from discriminatory strikes.
i.e., Discriminatory Motive
Sometimes a government action will appear to be neutral on its face and in its application, but will have disproportionate impact on a particular class of person (such as a racial minority or woman). Such a law will be found to involve a classification only if court finds that the law making body enacted or maintained the law for a discriminatory purpose. In such cases, the court should admit into evidence statistical proof that the law had a disproportionate impact on one class of persons. However, mere statistical evidence will rarely be sufficient in itself to prove that the government had a discriminatory purpose in passing the law. Statistical evidence may be combined with other evidence of legislative or administrative intent to show that a law or regulation is the product of a discriminatory purpose.
i.e., a police department used results from a written test as a criterion for hiring police officers. Members of identifiable racial minorities consistently got low scores on the test, although there was no proof that the test was written or otherwise employed for the purpose of disadvantaging minority applications. Because of the absence of no statistical proof of discriminatory purpose, there was no equal protection violation.
i.e., a state gave a preference in the hiring and promotion of civil service employees to persons who were honorably discharged from US military. The foreseeable and actual impact of this law was to disadvantage the female population of job applicants, because the majority of veterans are men. Because there was no proof (other than the statistical impact of the law) that the legislature enacted the law for the purpose of hurting women (as opposed to the purpose of aiding veterans), the law was upheld.
i.e., a statistical study showing that black defendants in capital cases are much more likely to receive the death penalty than are white defendants in a state will not in itself establish that a particular black defendant was denied equal protection by being sentenced to death for murder in that state. the statistical study is insufficient to prove purposeful discrimination.
The third way to show intentional discrimination is the most difficult to prove. A discriminatory effect alone is not enough. The legislature’s discriminatory motive must be show (e.g., by evidence of a history of discrimination).
Types of Classification
Race and National Origin (SS)
Proving the existence of a racial or national origin classification:
The classification exists on the face of the law when the law by its very terms draws a distinction amongst people based on race or national origin. On the other hand if the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent
i.e., Almost every case where the classification would burden a person because of her status as a member of a racial or national origin is invalid. The only explicit race discrimination upheld despite strict scrutiny was the wartime incarceration of US citizens of Japanese ancestry where the court found that the law was necessary to achieve compelling interest of national security.
i.e., state could not deny custody of a child from a previous marriage to a white mother merely b/c her new husband was black where the mother was otherwise found to be an appropriate parent.
i.e., a law that said “blacks cannot serve on juries” or black and white children cannot play together, are racial classification on its face
i.e., discriminatory use of preemptory challenge based on race denies equal protection. When a peremptory challenge is based on race there is both discriminatory impact and discriminatory intent.
i.e., Police Det requires test to become a cop. 80% of blacks failed. SC said impact alone is not enough. RBR must be used unless it can be proven that the intent behind it is discriminatory.
Standard: If government action classifies persons based on race or national origin, strict scrutiny standard is applied even if the classification is one, which benefits minorities
Discriminatory Legislative Apportionment: Race can be considered in drawing up new voting districts, but it cannot be the predominate factor. If a (can show that a redistricting plan was drawn up predominately on the basis of racial consideration, the plan will violate the Equal Protection Clause unless gov can show that the plan is narrowly tailored to serve a compelling state interes
School Segregation
Only deliberate “de jure” segregations violate the Equal Protection Clause. (Brown v. Board of Education - only intentional segregation in schools will be invalidated under equal protection)
i.e., no equal protection violation was found where a school system established attendance zones in a racially natural matter, but racial imbalance occurred because of housing patterns
Remedying Intentional School Segregation
When it is proven that a school board has engaged in a racial discrimination of schools, the court, in order to remedy the past discrimination, may order the “busing” of the students.
Busing
A federal court order requiring the transfer of students must be tailored to eliminate proven racial discrimination in the school system. However the court may not impose a remedy that 1-goes beyond the purpose of remedying the vestiges of past segregation, 2-a court may order inter-district busing (busing between two independent school districts) only if it has been proven that both school districts cooperated in a policy to create racial discrimination in their schools.
• A court may not impose a remedy that goes beyond the “vestiges of past discrimination”
i.e., it is impermissible for a court to impose a remedy whose purpose is to attract non-minority students from outside the school district when there is no evidence of past segregation outside the district
i.e., state not required to fund salary increases and remedial programs to create magnet schools to attract suburban students to urban schools
Court ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system. Court-ordered busing is a temporary measure, which must be terminated once the vestiges of past discrimination have been eliminated. Also the proper purpose of court ordered busing must be to remedy past discrimination, not to attract non-minority students from outside districts to achieve integration.
Affirmative Action
Government action, whether by federal, state or local government bodies that favors racial or ethnic minorities is subject the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.
Affirmative Action in Education: Since government has a compelling interest in promoting racial diversity in public school bodies and faculties in higher education programs, an education institution may use race as one factor in admission or hiring, but quota system that attempts to achieve or maintain a mathematical balance in student bodies may not be used since quota system will not found to be necessary to promote educational diversity
( BZ Bakke case: Good effect of diversity is a compelling justification because student would learn from each other
( BZ: remedying past discrimination is also a compelling justification
( BZ: Grutter v Bollinger: there is compelling justification because of educational benefits that would flow from having a critical mass of under representative minority applicants (cannot be automatic awarding of points)
However, court will look into two other indicia:
First, the court will look to see whether there are race neutral alternatives before allowing educational benefits that would flow from having critical mass of under representative applicant as a compelling justification. Here, the school could have arguable use lottery system, or take a percentage of all high school graduated that are in the top of their class. However such alternatives are arguable not workable alternative since the school has to constantly keep an eye on top graduates.
The Second indicia of a well-tailored law are must not harm the non-minorities. However there is no undue harm to non-minorities here b/c the in scheme of law school admission process every one gets an individualized consideration and therefore if someone is not admitted there is no stigma involved and there is no harm (its merely a part of process of admission)
The third indicia in a well tailored statute is time limits or having periodic reviews i.e., term of years
Affirmative Action ( SS (
1-compelling justification +
2-well tailored (no over inclusive or under exclusive, no quota) (education or remedy?)
Affirmative Action in Remedying Past Discrimination
The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general past “societal discrimination.” It must be remedying the entity’s own past discrimination (not general societal discrimination) and the law has to be well tailored
i.e., police department wants to hire 1 blk with any 1 white. If the police department itself has not discriminated in the past against blks, it cannot use affirmative action b/c it merely amounts to remedying past societal discrimination
i.e., city of Richmond v. Croson: city could have a set aside program for minority construction companies to remedy for past discrimination b/c 1-no compelling justification was established because the city itself never discriminated against minorities or caused discrimination against minority applicants and 2-it was not well tailored law: because a) it was a set aside quota or percentage rather than a factor, and b) it was over inclusive and included native Alaskan, which never set foot in Richmond for construction, also c) there was no time limits to show how long the program would last ( it was not a well tailored
Where There Was No Past Discrimination: Remedying past private discrimination within the governmental agency’s jurisdiction is a compelling interest, but there is no compelling interest in remedying the general effects of societal discrimination. i.e., for a city to give a preference to minority race applicants for city construction contracts, it must identify the past unconstitutional or illegal discrimination against minority construction business that it is now attempting to correct.
Affirmative Action says Treatment of classifications benefiting minorities: Strict Scrutiny is generally used
1. Exception: Numerical set-asides are allowed only to remedy clearly proven past discrimination. The purpose of the law must be remedy past discrimination. The past discrimination must have been persistent and readily identifiable. The remedy may not go beyond the vestiges of the past harm.
i.e., SC upheld a law that required one black to be hired w/ each white hired, when it was a remedy for past discrimination
2. Educational institutions may not use quotas or add points (quantify race) to applications solely for race. They may however use race as one factor in admissions decisions to help minorities. i.e., SC has recognized that colleges and universities have a compelling interest in a diversified student body
3. Seniority system may not be disrupted for affirmative action i.e., school had to cut off senior employees; it got rid of the whites b/c it had more of them than blacks. Crt said that it did not matter. It has to get rid of people based on seniority alone
• Discrimination by private employers is not subject to equal protection review, but may be restricted under 13th amnd or the commerce clause.
2. Alienage (SS)= Non-citizen (legal residents but not yet citizen, i.e., me) (classification btwn citizens & non citizen)
Because congress has a plenary (exclusive) power over aliens (regulating immigrants), federal alienage classifications are not subject to strict scrutiny and rather the court applies rational basis test. On the other hand, if a state or local government classification is based on alienage, the law is subject to SS.
i.e.,, federal Medicare regulations could establish a five year residency requirement for benefits that entitled any resident that are non-citizens (RBR b/c Feds can discriminate against non citizens: aliens)
i.e., a state law requiring US citizenship for welfare benefits, civil service jobs, or a license to practice law violates EP b/c there is no compelling interest justifying the requirement (SS b/c it is a state law that is regulating alienage)
Exception #1: Political Function Doctrine: Classifications based on alienage triggers SS, however, political function doctrine is an exception to the general rule: under political function doctrine, if a law discriminates against alien where participation in the function of government involves a broad discretionary power, the rational basis standard applies
( Government may discriminate against aliens with regards to voting, serving on a jury, being a police officer, a judge, a pubic school teacher, or a probation officer, prison guard
← A notary’s responsibilities are essentially clerical and do not fall within the exception for positions related to participation in the governmental process, thus a law requiring a notary public to be citizen is subject to SS and since there is no compelling governmental interest justifying such requirement, requiring citizenship for such clerical jobs are unconstitutional
← A state can validly discriminate and refuse to hire aliens (non-citizen residents) as police officers and teachers and for all other positions that have direct effect on the functioning of government
← Make sure not to distinguish questions that point to durational residency requirement (which interferes w/ right to travel, infra) with questions that points to residency /US citizenship requirement for applying for a private job (which is a discrimination based on alienage, i.e., a state conditioning residency or US citizenship for private job( such discrimination triggers SS, and are invalid (unless it is Fed law or that political function is involved)
Exception #2: Congress’s regulation affecting aliens
Because congress has a plenary (exclusive) power over aliens (regulating immigrants), federal alienage classifications are not subject to strict scrutiny and rather the court applies rational basis test.
Exam Tip ( Illegal Aliens: Undocumented (“illegal”) aliens are not a suspect classification. ( State laws regarding illegal aliens are merely subject to a “rational basis” standard. However, the court had determined that illegal alien children have a right to free public elementary and secondary education. (When you see an undocumented alien on the fact patter, watch out, do not analyze the undocumented aliens under any status ( they are not suspect or quasi suspect class – court never addressed undocumented aliens, so apply RBR test to them !!! – now if there is another classification associated with this “undocumented aliens” then you just have to analyses the other right separately, i.e., undocumented aliens education ( 1-undocumented aliens ( RBR 2-there is no fundamental right to education( RBR
i.e., Plyler v Doe: TX law said children of citizens and documented aliens would receive a free public education. SC did not articulate a level of scrutiny, but said unconstitutional.
Education is not a fundamental right under EP
3. Gender Classification (IS)
Standard and Burden: The court has expressly held that the government bears the burden of proof in gender discrimination cases and that an “exceedingly persuasive justification” is required in order to show that gender discrimination is substantially related to an important government interest. Stereotypical or loose-fitting generalities about conduct may not be used.
i.e., law punishing males, but not females for statutory rape found to be substantially related to important interest of preventing pregnancy of minors.
i.e., law granting automatic citizenship to non-marital kinds born abroad to American mothers, but requiring fathers to establish paternity is upheld (promotes the important gov interest of avoiding proof of paternity problems, which are more difficult to resolve for fathers)
Proving the existence of gender classification: (De Jure v De Facto)
If the law, by its very terms, draws distinction between people based on gender, there is an intentional classification on the face of the law. On the other hand, if the law is facially neutral, proving a gender classification required demonstrating both discretionary impact and discriminatory intent
i.e., a statute giving the husband, as head of the household, the right to unilaterally dispose of property jointly owned with his wife violates EP
i.e., Virginia had a law that said only men could attend Army University. Crt used intermediate scrutiny, and said there was no exceedingly persuasive justification in order to show the law was substantially related to important gov purpose, and thus it was unconstitutional
i.e., a statute giving preference to males over females to act as administrator of an estate violated EP
i.e., a city ordinance requires police officers to be of a certain height and weight. Statistics show a small % of women meet this requirement. Impact alone is not sufficient to render the law unconstitutional. There must also be discriminatory motive to render it unconstitutional.
I.e., a state statute granting a hiring preference to veterans was upheld even though the result would disadvantage women since most veterans are men. The court found that the purpose of the statute was to held veterans, not to discriminate against woman.
I.e., discriminatory use of peremptory challenges based on gender denies EP
Affirmative Action Benefiting Women
Gender classifications benefiting women that are designed to remedy past discrimination and differences in opportunity will be allowed as long as the remedy is congruent to the problem. On the other hand, gender classifications benefiting woman that are based on role stereotypes will not be allowed.
i.e., Tax exemption and social security used a different formula for men than for women, and the formula benefited women to make up for past discrimination in the workplace are valid.
i.e., a navy rule granting female officers longer tenure than males before mandatory discharge for non-production is valid to make up for past discrimination against females in the navy. (b/c in the past men were afforded greater promotional opportunities than women)
i.e., women should be alimony but men should not is not allowed (stereotype)
i.e., women automatically get benefit if husband dies, but men must prove dependency on her income is not allowed
|Gender Classification |Status |
|Gender-based death benefits |Invalid |
|Gender-based peremptory |Invalid |
|strikes | |
|Alimony for women only |Invalid |
|State supported all-male or |Invalid |
|all-female schools | |
|Discriminatory minimum |Invalid |
|drinking age women 18 while | |
|men 21 | |
|Denial to admit male to |Invalid |
|nursing school | |
|Discriminatory statutory |Valid |
|rape laws | |
|All-male draft |Valid |
|Requiring American fathers |Valid |
|(but not mothers) to prove | |
|their parentage of | |
|non-marital children born | |
|abroad to obtain US | |
|citizenship for them | |
← Keep in mind that most gender classifications are struck down. This is particularly true if they perpetuate stereotypes of economically dependent women.
4. Illegitimacy Classification (IS) Non-marital children
Legitimacy classifications are reviewed under intermediate scrutiny standard. Such classifications must be substantially related to an important government interest.
• Laws that deny a benefit to all non-marital children, but grant it to all marital children always fails IS. However, to prevent fraud and promote efficient disposition of property at death (an important government interest), a state can require non-marital children to prove the paternity of the father before death (substantially related to the interest)
i.e., the court struck down a state law that required illegitimate children to bring paternity suits within six years while allowed legitimate children to seek support from parents at any time. The laws was not related to the state interest of preventing stale or fraudulent claims
• Immigration preference to legitimate children permissible because congress has plenary power over immigration, it can give preference to legitimate children.
MBE Tip: For the MBE, you must memorize the suspect classification (RNA), quasi-suspect classification (GI), and the fundamental rights (privacy, travel, voting, and first amend rights). Any other classification or any other right is not entitled to more than the rational basis test, and thus the gov regulation will usually be valid. Do not let your personal feelings lead you to apply the wrong standard (and pick the wrong answer) because you think the right is important or the group is worthy
5. Other Classifications – (RBR)
All other classifications are evaluated under rational basis standard, i.e.,
Age discrimination: RBR
Age is not a suspect or quasi-suspect class. Thus, government actions based on age will be upheld if there is a conceivable rationale basis for the classification.
i.e., police officer can be forced to retire at age 50, even though he is as physically fit as a younger officers.
i.e., A state constitution that requires state judge to retire at age 70 does not violate the EP ( MBE: Mandatory retirement ages are always valid
Disability discrimination: RBR
Wealth discrimination: RBR
Wealth is not a suspect or quasi-suspect class. However, inability to pay a governmentally required fee cannot be the sole basis for depriving a person of a fundamental constitutional right
← gov will be required to waive a 1-marriage license fee and 2-divorce court fees and 3-poll taxes for voting for indigents – marriage and divorce are part of fundamental right of privacy; voting is a fundamental right
Education discrimination: RBR
There is no fundamental right to education. Thus:
1- Children are not denied EP when the gov provides greater educational opportunities for children who can afford to pay access to the best state operated school. In fact, the court has upheld the use of property tax to fund local schools even where it resulted in better education for the children in districts w/ a higher tax base.
2- The Crt has also upheld a law that authorizes some school districts in the state to charge user fees for bus transpiration to the local public school
Economic regulations: RBR
Sexual Orientation discrimination, i.e., gays, lesbians, homosexual, etc: RBR
Make sure not to confuse gender discrimination (IS) with sexual orientation (RBR). Gender is sex, while sexual orientation is one’s tendency, preference and behavior
6. Fundamental Right Protected under Equal Protection: (1-Privacy, 2-Vote, 3-Travel, 4- 1st Amend rights)
1. Right of Privacy
Various privacy rights including marriage, sexual relations, abortion, and childbearing are fundamental rights. Regulations affecting these rights are reviewed under strict scrutiny standard (same as DP)
Marriage
The right of a male and female to enter into (and, probably to dissolve) the marriage relationship is a fundamental right. The court has indicted (Griswold v Connecticut) that there is a “marital zone of privacy” and thus it will grant broader protection to private sexual relationship between married persons than it does concerning non-married persons.
← A prison regulation that prohibited an adult prisoner from establishing a legal marriage relationship with another adult unless the prison superintendent approved the marriage is invalid, because the regulation is “not reasonably related to any asserted penological interest” (( argues SS to strike it down, state pushes it to RBR to uphold it, but even under RBR it is struck down b/c it is not rationally related to any penological interest)
Use of Contraceptives
A state cannot prohibit distribution of contraceptive to adult
- States can prohibit sales of such contraceptives to persons under 16 who do not have approval of licensed physician
3) Keeping Extended Family Together
Zoning regulations that prevent family members, even extended ones, from living together are invalid.
← This right covers the extended families: zoning ordinance cannot prohibit extended families from living in a single household since there is no compelling interest to justify such rule.
← This right does not extend to unrelated people
Obscene Reading Material
The right to privacy includes freedom to read obscene material in one’s home except for child pornography. This right does not include the right to sell, purchase, receive, or transport obscene material
Rights of Parents
Parents have a fundamental right to make decisions concerning the care, custody, and control of their children
← This right includes education and visitation
i.e., a parent has a fundamental right to send a child to private school or to forbid visitation with grandparent
Sodomy ( No Privacy Right
There right of privacy does not include the right of consenting adults to engage in sodomy.
Collection and Distribution of Personal Data ( No Privacy Right
The right of privacy does not prevent the state form collecting, computerizing and distributing personal data such as name and address
i.e., there is no privacy right to prohibit state from accumulating and computerizing the names and addresses of patients for whom dangerous drugs are prescribed
i.e., DMV records and public records such as arrest are not covered either
Right to refuse unwanted medical treatment
The court has assumed that a mentally competent adult has the right to refuse lifesaving medical treatment or lifesaving nutrition- Cruzan case
← Vaccination: however, an individual can be made to submit to vaccination against contagious diseases because of the governmental and societal interest in preventing the spread of disease
← Family or guardian decisions for adults in Coma : states can permit relatives to decide whether to refuse medical treatment when the individual is incapable of making or expressing such decisions and may condition it on proof that comatose adults would have chosen to refuse medical treatment if she were capable of making the decision herself
← No right to assisted suicide
Abortion
The right of privacy includes the right of a woman to have an abortion without interference from the state under certain circumstances. (Roe v. Wade) However, because the state has two compelling interest in abortion cases that often compete, namely protecting the health of both the woman and the fetus that may become a child and woman’s privacy rights, the court has adopted two basic rules: 1-Pre-viability rule, and 2-Post Viability Rule. Before viability, a state may adopt a regulation protecting the mother’s heath and the life of the fetus if the regulation does not place an “undue burden” on or substantial obstacle to the woman’s right to obtain an abortion. Once the fetus is viable, the state’s interest in the fetus’s life can override the woman’s right to choose an abortion, but the state cannot prohibit the woman from obtaining an abortion if an abortion is necessary to protect the woman’s heath or safety.
- Financing Abortion: neither federal nor local governments are required to grant medical benefit payments for abortion to indigent women.
|Pre-viability abortion regulation |
|No Undue Burden |Undue Burden |
|Requiring doctor to |Requiring woman |
|give woman relevant |to notify spouse |
|info to make informed |about abortion |
|consent | |
|Requiring 24-houre |Barring all |
|waiting period |partial-birth |
| |abortions |
|Requiring parental |Requiring early |
|consent or parental |term abortions to|
|notice for minors to |be approved by |
|obtain an abortion, if|another doctor, |
|there is a judicial |hospital or 2nd |
|bypass |opinion |
|Requiring abortion be | |
|performed only by | |
|licensed physicians | |
|Tissue from aborted | |
|fetus be sent to a | |
|pathologist | |
2. Right to Travel
Right to travel is not explicit in the text of the construction but rather the right to travel is one of the implied fundamental rights that are inferred from history, structure, design and context of the construction. Generally when a state uses a durational residency requirement (a waiting period) for dispending benefits, that requirement is usually subject to strict scrutiny (under the 14th amendment). This means that government must show that the waiting period requirement is necessary to achieve a compelling state interest and the means used is narrowly tailored. However, “Bona Fide Residency Requirements” for is an exception to the general rule
Exception: “Portable / Consumption Benefits”
Under this exception, “states are free to enact bona fide residency requirement for “portable or consumption” benefits such as filing for divorce, obtaining state education, or to vote. The rationale is that the states have a compelling reason not to become a divorce mill or simply provide benefits to those who remain in the grantor state just long enough to obtain the benefit and then return to their original domicile
← Then argue what the Compelling purposes is:
If the reason is budget and administrative effectiveness in planning or economic ( not sufficient reason ( unconstitutional durational period
Make sure not to confuse these two: 1-durational residency requirement (not valid -SS), 2-bona fide residency requirement (valid):
1-Durational residency requirement draw a distinction between current residents based on their length of time in the state and new arrivals. Drawing such distinction results in the “unequal distribution of rights and benefits among otherwise qualified residents based on time and acts as a deterrence and impairs the right of travel. Therefore such durational residency requirement is subject to SS and invalid
2-Bona fide residency requirements, on the other hand, do not infringe on the right to travel but rather provide benefits to current residents that are not available to non-residents. Such bona fide residency requirements such as right to state education, tuition, right to marry, to file for divorce, or the right to vote do not violate the right to travel
Classification based on residency requirements may violate either the “Equal Protection Clause” or the “privileges and immunities clause” but not the “right to travel”.
• Right to Travel encompasses the right 1-to leave and enters another state, and 2-to be treated equally if they become permanent residents of that state.
• Laws that prevent people from entering or moving into a state must meet SS
i.e., it is unconstitutional to deny people the right to enter the state unless they can support themselves
• Durational residency requirements must meet SS
Rationale: can chill interstate commerce
• MBE Tip: for voting, 50 days is the maximum allowable durational residency requirement
International Travel
International travel is not a fundamental right. It is, however, protected from arbitrary federal interference by the Fifth Amendment Due Process clause and mere rational basis test applies.
• Old v. New Residents
A state law that distinguishes between residents of the state on the sole basis of their length of residency will serve no legitimate state interest. This type of law should be stricken under the rational basis test because it had no rational relationship to any legitimate state interest.
i.e., a state statute that dispensed differing amount of state money to residents of the state based on each resident’s length of residence is invalid
i.e., a state statute that grants an annual property tax exemption to a veteran military services only if he resided in the state before a specific date is invalid.
i.e., a state law that grants a hiring preference (for civil service employment) to a veteran only if he was resident of the state prior to joining the armed services is invalid
** Old Vs New residents: Apportioning benefits on the basis of old and new residency is not a legitimate state objective. Dividing up revenue from oil dividends is unconditional for the same reasons as it varying university tuition on a sliding scale based on years of residence, different taxes based on length of residence and access to other finite public facilities such as student loans, civil service jobs etc
Residency for Welfare benefits – SS
Classifications based on durational residency requirements as a prior qualification for welfare benefits are subject to strict scrutiny since they touch on a fundamental personal right – the right of interstate travel.
Residency for voting – SS
The state may have a compelling interest in requiring reasonable residency requirement for voting so that government may have sufficient time to check election rolls, prevent fraud, and administer the electoral system (more than 50 days is invalid)
Residency for divorce
In a domestic relations matter such as divorce proceedings, states may apply boa fide residency requirements since the “judicial power to grant a divorce is founded on domicile”
Essay Exam tip: when there is violation of right to travel, beside EP /and or SDP issue, there might be violation of immunities and privileges clause – extra point
| |
|Right to Travel |
| |1 yr residency to |Inv|
| |receive welfare |ali|
| |benefits |d |
| | | |
| | | |
|Durational | | |
|Residency | | |
|requirement | | |
| |Receiving no grater |Inv|
| |than those paid in |ali|
| |state of prior |d |
| |residence before 1 | |
| |year | |
| |1 yr residency to |Inv|
| |receive state |ali|
| |subsidized medical |d |
| |care | |
| | |Inv|
| |1 yr residency to |ali|
| |vote |d |
| | |Val|
| |30 days residency to|id |
| |vote | |
| | | |
|Bona fide | | |
|Residency | | |
|requirement | | |
| | |Val|
| |1 yr residency to |id |
| |get divorced | |
| | |Val|
| |1 yr residency to |id |
| |get in state tuition| |
| |for education | |
3. Right to Vote
The right to vote is a fundamental right and hence restrictions on voting, other than on the basis of age, residency and citizenship, are invalid unless they can pass strict scrutiny test.
1) Residency Requirement and right to Vote
Reasonable time periods for residency (e.g., 30 days) are valid since there is a compelling interest in ensuring that only bona fide residents vote. However, longer residency requirements will probably be held invalid (e.g., 1 year) because they discriminate against newer residents without a compelling reason and thus they violate the Equal Protection Clause. Such residency requirements might also violate the right to travel.
- Congress may override state residency requirement in presidential election.
2) Poll taxes and Right to Vote (requirement to pay a fee to vote) are unconstitutional b/c would keep some citizens from voting.
3) Property Ownership and Right to Vote: Property Ownership requirements for voting or holding public office are usually invalid.
( Sole Exception – property ownership was allowed as a condition for being allowed to vote in a water district election (BZ: special purpose elections, i.e., water storage districts)
4) Standard-less Recount
Counting uncounted votes without pre-set standards in a presidential election violates the Fourteenth Amendment Equal Protection Clause (Bush v Gore)
5) Gerrymandering
Racial Gerrymandering: Race (and presumably other suspect classifications) cannot be the predominate factor in drawing the boundaries of voting districts unless the district plan can pass muster under strict scrutiny (i.e., the use of race in drawing election district lines must meet SS)
Political Gerrymandering: it is unconstitutional to gerrymander based on political-group membership, but to prove unconstitutional political gerrymandering, a plaintiff would have to show that the district lines were drawn to suppress voting power of a political party and that the districting system consistently diluted the voting power of a particular group of voters.
6) One Person, One Vote
The “one person, one vote” principle applied whenever any level of government, state or local, establishes voting districts for the election of representatives by popular election form individual districts (i.e., One person/ one vote must be met for all sate and local elections)
- States must be very precise when creating congressional district within the state, such that there is almost exact mathematical equality between congressional districts within a state.
- However, when congress apportions representatives among the states, congress’s good faith method of apportioning that gives more deference is not subject to the precise mathematical formula and are proper so long as the number of persons in each district does not vary significantly.
➢ MBE Exam Tip: voter approval does not justify deviation from one-person one vote.
i.e., recently there was a Q where there was an election where 2 cities decided to merge. Under the initiative, one city would get more voting power. It was not allowed even though approved by citizens’ vote
There are 2 exceptions to one-person one vote:
Exception #1: “At-Large” elections are constitutional, unless there is proof of a discriminatory purpose
i.e., Mobile, Alabama has a 3 person city council, it might have divided the city into 3 districts, but instead it decided to provide each citizen 3 votes, one for each seat. Consequently a black person was never elected. However the SC said it was constitutional. Proof of discriminatory impact alone is not enough. ( must show that the purpose of the “at large district” was to discriminate against blacks which was lacking.
Exception #2: Special Purpose Election
The one person, one vote principle does not apply to elections of officials who do not exercise “normal governmental authority” but rather deal with matters of special interest in the community e.g., water storage districts.
Procedural Due Process
The Due Process clause of the 5th (applicable to federal government) and the 14th amendment (applicable to the state) provide that the government shall not take a person’s life, liberty, or property without Due Process of law. Procedural Due Process contemplates fair process/procedure, which requires at least an opportunity to present objections to a neutral decision maker before the government can act to deprive an individual of life, liberty or property.
Procedural DP essay framework
Give complete Definition
2- Your second heading must be: “First, Has there been a depravation of LLP?
3- Third heading is: “Second, What Type of Procedure is Required?”
4- Fourth and last heading is: Irrebuttable Presumptions
- Deprivation must be aimed at individual and not general public: There is a right to procedural Due Process only if gov acts to deprive an individual of LLP. There is no right to PDP if the gov acts generally that affect individuals’ LLP
i.e., a state need not provide individuals with an opportunity for hearing when adopting the general requirement for obtaining driver’s license (e.g., age, residency, etc) or terminating welfare benefits of all people. If gov was terminating an individual’s welfare benefits, then there is a right to PDP for that individual.
- Deprivation must be by gov (unless state action exists) Generally, the government’s failure to protect people from privately inflicted harm does not deny Due Process. (DP protects ppl from intentional act of gov. it does not protect ppl from acts of private ppl, unless there is state action tying up the private individual to gov)
i.e., boy beat by his father to death, his guardian sued Dept of Social Services for failing to protect boy against father. Court held that the gov has no duty to protect from privately inflicted harms unless the gov created the harm. The gove only has a duty to provide protection if it creates the danger
- Depravation must be Intentional and not Negligent
Generally, there must be intentional or reckless government action for liability to exists. Government negligence is not sufficient for a deprivation of Due Process. In other word, “only intentional and not negligent deprivations of rights violate the DPC. In emergency situations, the government is liable under due process only if its conduct “shocks the conscience.”
- there has to be intent on the part of the gov to cause harm to the victim
- the Due Process provisions do not create property or liberty interest; their purpose is to provide protection against arbitrary and intentional or reckless conduct of gov, i.e., 14th amend does not give out-of-state attorneys the right to appear in state court without meeting a state’s bar requirements
- Older SC cases indicated that Due Process protects “rights” but not “privileges.” Today, the court will determine whether a legitimate liberty interest or property interest is being taken
➢ MBE Tip: answer choice turning on the distinction between a right and privilege is always the wrong answer. The new buzzword is “entitlement.”
First Question is, Has there been a deprivation of life, liberty, or property?
First, has there been a depravation of Liberty interest?
Liberty includes more than freedom from physical restraint. A deprivation of liberty occurs if there is a loss of a significant freedom secured by the constitution or a statute (the violation of a written law)
1. Freedom from bodily restraint, physical punishment, the right to contract, to engage in gainful employment.
i.e., freedom from bodily restraints: state must grant parolee evidentiary hearing when it revokes parole (or probation)
i.e., physical punishment: corporal punishment of pupils in a school invades a liberty interest
2. Before an adult can be committed to a mental institution, he must receive notice and hearing unless
5- in an emergency situations
6- a criminal ( that is acquitted on the bases of insanity defense
3. When a parent institutionalizes a child, the minor are entitled to a screening by a “neutral fact finder”. Mere parental consent is not enough
4. Right to develop certain parental rights
On Exam, you must analyze and argue both violation of liberty interest and violation of property interest (the right violated must be argued for both liberty interest and property interest
5. Loss of any Fundamental constitutional rights is a loss of liberty interest
i.e., the right to free speech and associate, the right to travel, and the right to vote (residency requirement infringes on right to travel, thus when you have a residency requirement, you have EP issue and PDP issue)
6. Injury to reputation, alone and by itself, is not a deprivation of liberty or property interest. (Paul v. Davis) However, if the injury to reputation is coupled with lost of significant associational opportunities such as employment or tangible and economic losses, then there is a loss of liberty
7. The right to be free from defamation by government.
i.e., liberty found in the effect f a state law which authorized public to post the names of “excessive drinkers” in liquor stores (Wisconsin v. Constantineau)
8. i.e., prisoners rarely have liberty interest (get the rule from dean’s book)
9. Right of a competent adult to refuse unwanted medical treatment
10. Agent of the state acting under color of state law triggers usc § 1983 it is a ( liberty interest (civil acts)
Second, has there been a depravation of Property interest?
Property includes more than personal and real property, but an abstract and mere unilateral expectancy of benefits is not enough. A deprivation of property occurs if a person has a legitimate claim of entitlement and that entitlement is not fulfilled. (Board of Regents v. Roth)
( Entitlement is a reasonable expectation to continued receipt of benefits.
1- Continued attendance at public school (Public Education): there is a property interest in the entitlement to continued attendance at a public school. Thus, a significant suspension (i.e., 10 days) requires procedural Due Process (Goss v. Lopez.) On the other hand, no prior evidentiary hearing is required if a student is dismissed for academic reasons
2- Welfare Benefits: one has a property interest in welfare benefits once she has been determined to meet the statutory criteria
3- Continued Public Employment: if there is a state statute or a clear practice or mutual understanding (promise, fixed-term contract) that an employment can be terminated only for “cause”, absence of good cause shown, the employee has a legitimate claim of entitlement to the continued employment and therefore there is a property interest for denial of which requires Due Process considerations. On the other hand, if the employee holds the position only at the “will” of the employer, there is no property interest in constituted employment (Biship v. Wood)
i.e., person works for go and gov promises they will have the job for 1 year. In the middle of the year, he is fired. ( had a reasonable expectation to have the job for 1 year. ( Property was deprived ( requires PDP. If the employment was at will, like most jobs, then there would be no expectation of continued employment and ( no deprivation of property and ( no PDP. Also there is no property interest when a state refuses to renew a fixed-term contract.
4- Retention of driver’s license – a state may not revoke a driver’s license without a hearing.
5- Pre-judgment garnishment: pre-judgment attachment or garnishment of wages, without notice or hearing violates procedural DP. However, procedural DP is not required where there is no “state action” i.e., lien creditor privately sells goods to foreclose a warehouseman’s lien
Second Question is, What Type of Procedure is required? What constitutes a “fair” procedure?
• Value of specific procedural safeguard to the interest: the risk of erroneous deprivation of such interest through the procedure used, i.e., the ability of additional procedure to increase the accuracy of the fact finding ( the more the court believes additional procedure will reduce the risk of erroneous deprivation, the more likely the additional procedure is required)
• Government interest in administrative efficiency ( the cost to the gov – the more expensive the additional procedure, the les likely they will be enforced
• Normally, the person whose interest is being deprived should 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.
Due Process rights are subject to waiver. As a general rule, Due Process rights are, presumably, subject to waiver is the waiver is voluntary and made knowingly (with an understanding of the nature of the right being waived).
Access to courts – indigents
Government fees (e.g., court filing fees) must be waived when imposition of a fee would deny a fundamental right to the indigent,
i.e.1- a marriage license or divorce court filing fee (privacy rights) or 2- filing fee for candidates for electoral office (voting rights) , or 3-cost of a obtaining transcript in order to appeal from termination of parental right (privacy rights) must be waived. On the other hand, fees can be imposed when non-fundamental rights are involved i.e., feeds for a bankruptcy discharge or review of welfare termination.
1) Welfare Benefits
Notice and hearing are required before welfare benefits can be terminated. Counsel need not be provided, but must be permitted.
2) Social Security Disability Benefits
Post termination hearing required. The rationale is that disability benefits, unlike welfare benefits, are not based on financial need and hence are not vital.
3) Public Education:
Disciplinary Suspension of public school students (suspension more than 10 days) requires notice & opportunity to explain (no formal hearing required) before suspension unless student poses a danger to persons or property or threatens to disrupt the academic process. If so (dangerous student), notice & hearing must follow. On the other hand, if a student is dismissed for academic deficiencies (academic dismissal) rather than disciplinary reasons, no prior evidentiary hearing is required
- Corporal Punishment in Public School: Corporal punishments in public school involve constitutionally protected “liberty.” However, the traditional common law tort remedies for excessive punishment satisfy procedural Due Process, and a prior hearing is not required
4) Public Employment
A public employee subject to removal only for “cause” generally must be given notice & opportunity to respond before termination of employment unless there is a significant reason for not keeping the employee on the job. in that case, the employee may be suspended without pay and without an opportunity to respond so long as there is a prompt post-suspension hearing with reinstatement and back pay if the employee prevails
5) Termination of a Parental Right to Custody
Notice & hearing before parent’s right to custody of child may be permanently terminated.
6) Treatment of Patients in Metal Health Care Facilities
7) Notice of Adversary Proceedings
8) Limitation of Attorney’s Fees for Veteran’s Benefit Hearings
9) Civil Forfeitures
10) Creditors remedies
11) Driver’s license
12) Punitive Damages
Punitive damage awards require instruction to jury to guide its exercise of discretion & judicial review (fair opportunity to appeal) to ensure its reasonableness (grossly excessive punitive damage rewards violate Due Process).
13) American Citizen Apprehended in a Foreign Country:
Notice & hearing required when an American citizen is apprehended in a foreign country and held as an enemy combatant.
14) Government Seizure of Asset & Pre-Judgment Attachment requires a notice & hearing before seizure or attachment unless there is an exigent circumstances
- Exigent circumstance = there is reason to believe the person would get rid of the property if there was notice (property will disappear)
- Due Process does not require an “innocent owner” defense to government seizure
Lastly, is there an Irrebuttable Presumption?
(Exactly like SPD and EP)
If the government “presumes facts” against a person that the individual is not qualified for some important benefit or right, such presumptions are unconstitutional as a violation of Procedural Due Process. In other word, it is a violation of a Due Process (SDP, EP, or PDP) for a tribunal to foreclose issues by conclusively presuming them to be true.
if the presumption affects a fundamental right (e.g., right to travel) or a suspect or quasi-suspect classification (e.g., gender), it will likely be invalid under strict scrutiny or intermediate scrutiny analysis, because the administrative convenience created by the presumption is not an important enough interest to justify the burden on the right or class. If some other classification or right is involved, the presumption will likely be upheld under the rational basis standard.
i.e., a state may not presume a teacher incapable of continuous service in the classroom merely b/c she is four or five months pregnant or has a child under age three .
i.e., the government may presume that a marriage entered into within nine months of a wage earner’s death was simply to secure social security benefits.
i.e., a statutory presumption that possession of marijuana was conclusive proof that the drug has been imported is invalid b/c marijuana is frequently grown in this country as well as abroad
( Exam Tip: On essay exam, you must raise and argue irrebuttable presumption after 1-substantive Due Process, 2-equal protection, and 3-procedural Due Process analysis. But on MBE, answer choices that mention irrebuttable presumptions are wrong answer.
MBE Tip: the Supreme Court no longer treats irrebuttable presumptions differently from other regulations or classifications. Thus, if an answer choice says, “invalid because it is an irrebuttable presumption,” it is a wrong answer. In such questions, you must consider whether the regulations concerns a fundamental right or suspect or quasi-suspect class, and then apply the applicable standard of review and judge accordingly.
| | | |Yes: |
| | |Private entity is performing a task|1-Running a Town or Park |
|State Action |First, Whether state action exists |that is traditionally and |2-Running an Election |
|(The constitution generally prohibits only acts|under Public Function doctrine |exclusively performed by the | |
|of the government, which infringes upon | |government | |
|protected individual rights. State action is a| | | |
|threshold question of governmental conduct, | | | |
|which must be satisfied before private acts may| | | |
|be punished under the 14th and 15th amendments.| | | |
|Sate action can be found in the actions of |Second, Whether State action exists | | |
|seemingly private individuals who 1-perform |under “Significant State Involvement”| | |
|exclusive public function, or 2-have |theory | | |
|significant and pervasive state involvement in | | | |
|their activity, or 3-when gov has enforced | | | |
|racially discriminatory decisions of private | | | |
|parties) | | | |
|Is there a private party on the fact pattern | | | |
|that is doing the unlawful conduct? | | | |
| | | |NO: |
| | | |1- Running a Shopping Mall |
| | | |2-Warehouse Line sale, |
| | | |Yes: |
| | | |1-Court enforcing a restrictive covenant |
| | |Acts between the state and the |2- Symbiotic relationship ie gov Leasing |
| | |private actor are so pervasively |premises to discriminatory lessee |
| | |entwined and sufficiently connected|3-State official acting in discriminatory |
| | |that the state can be said to have |manner under color of state law |
| | |affirmatively authorize, encourage,| |
| | |or facilitate the unconstitutional | |
| | |acts of the private entity. | |
| | |(Brentwood Academy v. Tennessee) | |
| | | |Not enough state involvement |
| | | |1-Granting License |
| | | |2-Providing essential service |
| | | |3-Granting Monopoly to utility Co |
| | | |4-Heavily regulating the industry |
| | | |5-Granting Charter, incorporation |
| | | |6-Granting exclusive name |
|Substantive Due Process | | |SS: |
|(Substantive Due Process is a “liberty” | | |Privacy rights: CAMPR |
|interest under the “liberty” phrase of the Due | |If a law limits a fundamental |1-Contraceptive, 2- Abortion b4 viability |
|Process clause of 5th and 14th amend and which | |right, strict scrutiny will be |2-Marriage, 3-Procreate, child rearing, control|
|can be ascertained by inquiring whether the | |applied. To be upheld under SS |upbringing of one’s child, keep family |
|asserted right is deeply rooted in this | |test, the government has the burden|together, 4-Refuse medical treatment by Comp |
|nation’s history and tradition and is implicit | |to prove that regulation is |adult |
|in the concept of ordered liberty so that | |necessary to achieve a compelling | |
|neither liberty nor justice would exist if it | |governmental purpose and the means |Travel |
|were sacrificed. These implied rights are | |used are narrowly tailored to |Residency requirement? |
|considered “fundamental” rights and are subject|First, what level of scrutiny |achieve its objective (i.e., there |Sobriety checkpoint? |
|to strictest scrutiny. (Griswold v |applies? |is no lesser restrictive | |
|Connecticut) The court has identified certain | |alternative means available). |Voting |
|rights within the “marital zone of privacy” as | |(Fun rights are 1-Privacy, |Residency Requirement? |
|fundamental privacy rights, such as 1-right to | |2-travel, 3-Voting, and 4- 1st | |
|marry, 2-right of access to contraception, | |Amend) |1st Amendment rights |
|3-right to procreate; child rearing, 4-right to| | |Free speech, 2-Association, 3-Religion |
|terminate a pregnancy prior to viability, 5- | | | |
|right of a competent adult to refuse unwanted | |In all other cases, the mere | |
|medical treatment. 6-Additionally, the court | |rational basis standard is applied,| |
|has established the right to adopt homosexual | |and the law is generally presumed | |
|sodomy as a liberty interest, but refused to | |to be valid so long as there is “a”| |
|classify it as a fundamental right) | |rational basis behind the law that | |
| | |relates to a legitimate | |
|Is the law interfering with a right? (Fun or | |governmental purpose | |
|socio economic right) |Second, does the law meet the | | |
| |required level of scrutiny? | | |
| | | | |
| | | | |
| | | | |
| |Irrebuttable Presumption? | | |
| | | |RBR: |
| | | |Socio-economic regulations, i.e., |
| | | |Practice a trade or profession |
| | | |Education |
| | | |Physician-assisted suicide |
| | | |Business, labor regulations, Taxation |
| | | |Lifestyle, sexual orientation |
| | | |Zoning, property and taking |
| | | |Punitive damages, and Etc |
| | | |
| | |Factual analysis: |
| | |Because… and since… therefore…. On the other hand, since... thus… |
| | |If the government “presumes facts” against a person that she is not qualified for |
| | |some important benefit or right, such presumptions are unconstitutional as a |
| | |violation of Due Process. In other word, it is a violation of a Due Process |
| | |(SDP, EP, or PDP) for a tribunal to foreclose issues by conclusively presuming them|
| | |to be true. If the presumption affects a fundamental right (e.g., right to travel, |
| | |vote, privacy) it will likely be invalid under strict scrutiny since the |
| | |administrative convenience created by the presumption is not an important enough |
| | |interest to justify the burden on the right or class. If some other |
| | |classification or right is involved, the presumption will likely be upheld under |
| | |the rational basis standard. |
|Equal Protection | |
| | |
| |Infra |
| | |
| | |
| | |
|Procedural Due Process | |
| |Infra |
| | |
| | |
| | |
| | |Specify and flash out each classification separately: on a given fact patter, there are generally |
| | |several classifications jammed together – separate each type of classification individually, i.e., |
| | |say that the law involves classifications based on #1 gender; classification # 2 is by age; |
| | |classification # 3 is by height; classification # 4 is bachelor degree v. without BA, married v. |
| | |unmarried, etc (it can be any kind of classification, i.e., people that do not wear glasses, pregnant|
| | |v non-pregnant, mentally challenged people, handicaps, tall, short, etc) |
| |First, whether the law involves| |
| |a discriminatory classification| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
|Equal Protection | | |
|(Under the Equal Protection Claus | | |
|of the 14th amend, “no state shall | | |
|deny to any person within its | | |
|jurisdiction the equal protection | | |
|of the laws”. Although Equal | | |
|Protection Clause of the 14th | | |
|amend, by its literal terms, | | |
|applies only to the states, it has | | |
|been held to have a parallel | | |
|component in the Due Process clause| | |
|of the 5th amend which is | | |
|applicable to the federal | | |
|government. Hence Equal | | |
|Protection Clause guarantees | | |
|against grossly unreasonable | | |
|discriminatory classifications by |Second, what level of scrutiny | |
|the federal and state government. |applies? | |
|Whether “X” law is upheld under | | |
|Equal Protection Clause depends on | | |
|the following inquiries: 1-whether | | |
|the law involves a discriminatory | | |
|classification? 2-what level of | | |
|scrutiny must be applied, and | | |
|3-whether the law meets the | | |
|required level of scrutiny?) | | |
| | | |
| | | |
| | |Only if the discrimination involves, Race, National Origin, or Gender: |
| | | |
| | |De Jure v. De Facto |
| | |As a general rule, the mere fact that legislation or governmental action has a discriminatory effect |
| | |is not sufficient to trigger judicial scrutiny. There must be intent to discriminate on the part |
| | |of the government. If the law, by its very terms, draws distinction amongst people, the law is |
| | |facially discriminatory and the court merely applies the appropriate standard of review for that |
| | |classification to determine whether the law is valid or not. If a law is facially natural but |
| | |has been administered in a discriminatory manner, (Yick Ho v. Hopkins) proving the existence of |
| | |discriminatory classification requires showing of discriminatory purpose . On the other hand, |
| | |if the law is neither discriminatory on its face nor has a discriminatory application, but merely has|
| | |a disproportionate impact on a particular class of person, (Washington v. Davis) such a law will not |
| | |be found to involve a discriminatory classification unless there is a discriminatory motive behind |
| | |the law. In such cases, the court may look into statistical evidence as a factor, however |
| | |statistical evidence alone is not sufficient to prove discriminatory purpose. On the other hand,|
| | |Statistical evidence coupled with other evidences such as history of past discrimination indicates |
| | |that the law is a product of discriminatory purpose or at least it was enacted and maintained for a |
| | |discriminatory purpose. Here, because the law says “X”…… |
| | | |Affirmative Action: gov action that favors racial or ethnic minorities |
| | |Race, National origin |is subject the same strict scrutiny standard as is government action |
| | |Alienage |discriminating against racial or ethnic minorities. |
| | | | |
| | |When a governmental action |Affirmative Action in Education: Since gov has a compelling interest |
| | |classifies people based on |in promoting racial diversity in public school bodies and faculties in |
| | |Race, National Origin, or |higher education programs, an education institution may use race as one|
| | |Alienage or that a |factor in admission or hiring, but quota system that attempts to |
| | |fundamental right (Privacy, |achieve or maintain a mathematical balance in student bodies can not be|
| | |Travel, Vote, 1st Amend) is |used since quota system will not necessary result in promoting |
| | |involved, Strict Scrutiny |educational diversity |
| | |will be applied under which | |
| | |the gov has the burden of |Affirmative Action in Remedying Past Discrimination: the gov has a |
| | |proving that regulation is |compelling interest in remedying past discrimination against a racial |
| | |necessary to achieve a |or ethnic minority. The past discrimination must have been persistent|
| | |compelling governmental |and readily identifiable. However, a race-based plan cannot be used|
| | |purpose and the means used |to remedy general past “societal discrimination.” It must be remedying |
| | |are narrowly tailored to |entity’s own past discrimination |
| | |achieve its objective. | |
| | | |Political Function Doctrine: Classifications based on alienage |
| | | |triggers SS, however, political function doctrine is an exception to |
| | | |the general rule: under political function doctrine, if a law |
| | | |discriminates against aliens where participation in the function of |
| | | |government involves a broad discretionary power, the rational basis |
| | | |standard applies (i.e., voting, serving on a jury, being a police |
| | | |officer, a judge, a pubic school teacher, or a probation officer, |
| | | |prison guard) |
| | | | |
| | | |State alienage discrimination is subject to SS but federal alienage |
| | | |classifications are upheld under RBR |
| | |Gender | |
| | |Illegitimacy |Gender classifications benefiting women that are designed to |
| | | |remedy past discrimination and differences in opportunity are |
| | |When a governmental action |upheld so long as they are substantially related to an |
| | |classifies people based on Gender or|important governmental objective and that the remedy sought is |
| | |Illegitimacy, intermediate scrutiny |congruent and proportional to the problem. However, |
| | |will be applied under which the gov |governmental objective may not be found based on archaic, |
| | |has the burden of proving that the |stereotypical, or loose-fitting generalities about gender |
| | |law is substantially related to an |conduct or administrative convenience (only gender based |
| | |important gov purpose |discriminations upheld are male draft & statutory rape laws) |
| | |Other Classifications |
| | |When a classification merely involves socio-economic regulations, rational basis standard will be |
| | |applied under which the law is generally presumed to be valid so long as there is “a” rational basis |
| | |behind the law that relates to a legitimate governmental purpose i.e., age, disability, wealth, |
| | |education, economic, sexual orientation (i.e., gay, lesbian, homosexual), etc (gov wins under this |
| | |test) |
| 6- Fundamental Rights |
|Privacy rights are implied fundamental rights, which are deeply rooted in this nations history and tradition and are implicit in the concept of ordered and liberty. |
|The court has identified certain rights within the “marital zone of privacy” as fundamental privacy rights, such as right to CAMPR |
| |
|Right to travel is not explicit in the text of the construction but rather it is one of the implied fundamental rights that are inferred from history, structure, design |
|and context of the construction. Generally when a state uses a durational residency requirement (a waiting period) for dispending benefits, that requirement is |
|usually subject to strict scrutiny. This means that gov must show that the waiting period requirement is necessary to achieve a compelling state interest and the |
|means used are narrowly tailored. However, “Bona Fide Residency Requirements” is an exception to the general rule: Under this exception, “states are free to enact |
|bona fide residency requirement for “portable or consumption” benefits such as filing for divorce, obtaining state education, or to vote. The rationale is that the |
|states have a compelling reason not to become a divorce mill or simply provide benefits to those who remain in the grantor state just long enough to obtain the benefit |
|and then return to their original domicile |
| |
|Right to vote: building on the premise that the right to vote freely is “of the essence of a democratic society,” and is “at the heart of representative government”, the|
|court found that the right to vote is a fundamental right and hence restrictions on voting, other than on the basis of age, residency and citizenship, are invalid unless|
|they can pass strict scrutiny test. Regarding Residency Requirement and right to Vote, reasonable time periods for residency (e.g., 30 days) are valid since there is a|
|compelling interest in ensuring that only bona fide residents vote. However, longer residency requirements will probably be held invalid (e.g., 1 year) because they |
|discriminate against newer residents without a compelling reason and thus they violate the Equal Protection Clause. |
| | | |Freedom from bodily restraint, physical punishment, the right to |
| | | |contract, to engage in gainful employment |
| | | | |
| | | | |
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| | | | |
| | | | |
| | | | |
| | |Liberty interests includes more| |
| | |than freedom from physical | |
| | |restraint. A deprivation of | |
| | |liberty occurs when there is a | |
| | |loss of a significant freedom | |
| | |secured by the constitution or | |
| | |a statute | |
| | | | |
| | | | |
| | | | |
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| | | | |
| | | | |
| | | | |
| |First, has there been a | | |
| |deprivation of Life, | | |
| |Liberty, or Property? | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
|Procedural Due Process | | | |
|(The Due Process clause of the | | | |
|5th (applicable to federal | | | |
|government) and the 14th | | | |
|amendment (applicable to the | | | |
|state) provide that the | | | |
|government shall not take a | | | |
|person’s life, liberty, or | | | |
|property without Due Process of| | | |
|law. Procedural Due Process | | | |
|contemplates fair | | | |
|process/procedure, which | | | |
|requires at least an | | | |
|opportunity to present | | | |
|objections to a neutral | | | |
|decision maker before the | | | |
|government can act to deprive | | | |
|an individual of life, liberty | | | |
|or property.) | | | |
| | | | |
| | | | |
| |Second Question is, what | | |
| |type of procedure is | | |
| |required? | | |
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| |Irrebuttable presumption? | | |
| | | | |
| |What remedy? | | |
| | | |Before an adult can be committed to a mental institution, he must |
| | | |receive notice and hearing unless 1) in an emergency situations 2) a |
| | | |criminal ( that is acquitted on the bases of insanity defense |
| | | |When a parent institutionalizes a child, the minor are entitled to a |
| | | |screening by a “neutral fact finder”. Mere parental consent is not |
| | | |enough |
| | | |Loss of any Fundamental constitutional rights is a loss of liberty |
| | | |interest i.e., 1st amend rights: (free speech and associate), the right |
| | | |to travel, and the right to vote (residency requirement infringes on |
| | | |right to travel, thus when you have a residency requirement, you have EP|
| | | |issue, SDP issue as well as PDP issue) |
| | | |Injury to reputation, alone and by itself is not a deprivation of |
| | | |liberty or property interest. (Paul v. Davis) However, if the injury|
| | | |to reputation is coupled with lost of significant associational |
| | | |opportunities such as employment or tangible and economic losses, then |
| | | |there is a loss of liberty |
| | | |The right to be free from defamation by government. |
| | | |i.e., liberty found in the effect if a state law which authorized public|
| | | |to post the names of “excessive drinkers” in liquor stores |
| | | |Right of a competent adult to refuse unwanted medical treatment |
| | | |Agent of the state acting under color of state law depriving ppl of |
| | | |civil right ( remedy is 42 USC 1983 |
| | | | |
| | |Property interest is not | |
| | |defined by the US constitution |Continued attendance at public school (Public Education): there is a |
| | |but rather is determined by |property interest in the entitlement to continued attendance at a public|
| | |state law, statute or custom |school. Thus, a significant suspension (i.e., 10 days) requires |
| | |usage and practice. Property |procedural Due Process (Goss v. Lopez.) On the other hand, no prior |
| | |interest includes more than |evidentiary hearing is required if a student is dismissed for academics |
| | |personal and real property, but| |
| | |an abstract and mere unilateral| |
| | |expectancy of benefits is not | |
| | |enough. A deprivation of | |
| | |property occurs when a person | |
| | |has a legitimate claim of | |
| | |entitlement and that | |
| | |entitlement is not fulfilled. | |
| | |(Board of Regents v. Roth) | |
| | |Entitlement is a reasonable | |
| | |expectation to continued | |
| | |receipt of benefits | |
| | | |Welfare Benefits: one has a property interest in welfare benefits once |
| | | |she has been determined to meet the criteria |
| | | |Continued Public Employment: if there is a state statute or a clear |
| | | |practice or mutual understanding (promise, fixed-term contract) that an |
| | | |employment can be terminated only for “cause”, absence of good cause |
| | | |shown, the employee has a legitimate claim of entitlement to the |
| | | |continued employment and therefore there is a property interest for |
| | | |denial of which requires Due Process considerations. On the other |
| | | |hand, if the employee holds the position only at the “will” of the |
| | | |employer, there is no property interest in constituted employment |
| | | |Retention of driver’s license – a state may not revoke a driver’s |
| | | |license without a hearing. |
| | | |Pre-judgment garnishment: pre-judgment attachment or garnishment of |
| | | |wages, without notice or hearing violates procedural DP. However, |
| | | |procedural DP is not required where there is no “state action” i.e., |
| | | |lien creditor privately sells goods to foreclose a warehouseman’s lien |
| | | |Welfare Benefits: Notice and hearing are required before welfare |
| | |While all intentional |benefits can be terminated. Counsel need not be provided, but must be |
| | |governmental deprivations of |permitted. |
| | |life, liberty, or property | |
| | |require fair process, what | |
| | |constitutes fair process in | |
| | |terms of timing, type, extent | |
| | |and scope of the hearing varies| |
| | |according to the circumstances | |
| | |of the deprivation. | |
| | |Generally type and extent of | |
| | |the required procedure is | |
| | |determined by balancing the | |
| | |following factors (Mathews v | |
| | |Eldridge): 1. The importance of| |
| | |the interest to the individual | |
| | |2. The risk of an erroneous | |
| | |deprivation as the result of | |
| | |the procedure used 3. The | |
| | |magnitude of government | |
| | |interest in fiscal and | |
| | |administrative efficiency | |
| | | |Social Security Disability Benefits: Post termination hearing required. |
| | | |The rationale is that disability benefits, unlike welfare benefits, are |
| | | |not based on financial need, hence are not vital |
| | | |Public Employment: A public employee subject to removal only for “cause”|
| | | |generally must be given notice & opportunity to respond before |
| | | |termination of employment unless there is a significant reason for not |
| | | |keeping the employee on the job. in that case, the employee may be |
| | | |suspended without pay and without an opportunity to respond so long as |
| | | |there is a prompt post-suspension hearing with reinstatement and back |
| | | |pay if the employee prevails |
| | | |Punitive damage awards require instruction to jury to guide its exercise|
| | | |of discretion & judicial review (fair opportunity to appeal) to ensure |
| | | |its reasonableness (grossly excessive punitive damage rewards violate |
| | | |Due Process). |
| | | |Notice & hearing required when an American citizen is apprehended in a |
| | | |foreign country and held as an enemy combatant. |
| | | |Government Seizure of Asset & Pre-Judgment Attachment requires a notice |
| | | |& hearing before seizure or attachment unless there is an exigent |
| | | |circumstances (Exigent circumstance: there is reason to believe the |
| | | |person would get rid of the property if there was notice (property will |
| | | |disappear) |
| | | |
| | |Same analysis as SPD, supra |
| | | |
| | |Remedy of 42 USC 1983 (Civil Right Act) |
1st Amendment rights
Freedom of Speech And Assembly
The 1st amendment provides, in part, that “congress shall make no law abridging the freedom of speech or the press, or interfering with the right of the people to assemble. These prohibitions are made applicable to the state through the incorporation of the Due Process clause of the 14th amendment.
Content based vs. Content-neutral
Content-based: (Track 1):
1- Subject Matter Restrictions: where the application of the law depends on the topic of the speech
i.e., Chicago had a law that said no picketing unless it is a labor protest= subject matter ( SS
i.e., Candidates can’t talk about other candidates’ legal issues. Invalid b/c it prevented speech about a specific subject matter
|Public & limited public Forum |Non-Public Forum |
|1. must be content neutral (i.e., subject |1.viewpoint neutral |
|matter neutral and view point neutral) | |
|2. (IS) serves a significant gov interest & |2. reasonably related to a |
|is narrowly tailored |legitimate gov purpose |
|3. must leave open ample alternative channels| |
|of communication | |
2- Viewpoint Restrictions – where the application of the law depends on the ideology of the message
I.e., ordinance that says pro-war rallies are allowed in city parks, but anti war rallies are not.
I.e., no rallies in front of embassies that were rude to foreign gov
Content-neutral: (Track 2):
Regulations of speech unrelated to the content of the speech are subject to a three-part test akin to intermediate level of scrutiny (generally upheld)
1. Time, Place, and Manner?
i.e., no parades or demonstrations in city parks – regulates speech in a content neutral way
The extent to which the gov may regulate speech related conduct (TPM) depends on whether the forum involved is a public or non-public:
2. Symbolic Speech? Gov can regulate conduct that communicate if gov has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the gov’s purpose. (O’Brien Intermediate S)
Content-bases Restrictions
It is presumptively unconstitutional for government to place burdens on speech because of its content. To justify such different treatment of speech, the restriction must be necessary to serve a compelling state interest and that the means used must be narrowly tailored to achieve that purpose. On the other hand, there are several areas of “unprotected” speech where the content can be regulated:
• Note that even if a regulation falls within one of these unprotected speech, the will not necessarily valid; it might still be held to be void for vagueness, overbreadth, prior restraint or even unfettered discretion.
Procedurally proper court orders must be complied with (even if the order was erroneous) until they are vacated or overturned.
➢ MBE Tip: a person who violates a court order (lawful or unlawful) is barred from later challenging it. i.e., gag orders are always unconstitutional, but the publisher must comply with it (i.e., not publish) and then challenge it.
Freedom not to speak: the freedom of speech includes not only the right to speak, but also the right to refrain from speaking or endorsing beliefs with which one does not agree.
i.e., a state cannot force school children to salute or say a pledge to the flag.
i.e., MBE: gov cannot compel a speaker to reveal their identity (anonymous speech)
i.e., a driver could not be punished for blocking a portion of license place that says “Live free or die”: he did not have to display a slogan endorsed by state.
i.e., a state ay not require private parade organizers to include in their parade groups with message with which they disagree.
Prison inmates ( RBR
A regulation concerning the activities of prison inmates, including any 1st amend activities, is governed by a different standard: they will be upheld if they are reasonably related to legitimate penological interests.
I.e. a restriction on incoming mail will be upheld if it is rational; but a restriction on outgoing mail must be narrowly tailed because there is less of a penological interest involved
( Unprotected categories of speech means speeches that can be lawfully prohibited, banned or regulated
Clear and Present Danger of Imminent Lawlessness / Incitement
Fighting Words
Obscenity
Defamation
Commercial Speech
Licensing / permit requirement: A regulation that requires license for speech is a form of prior restraints since it prevents speech before it occurs. However, the gov may require license or permit as the means of regulating time, place and manner of speech if 1) it is content neutral, 2) further an important gov interest, 3) is clearly written and narrowly drawn, and 4) does not give the licensing official an unfettered discretion as to who may receive a permit. Additionally the licensing scheme must provide procedural safeguards such as prompt determination of request for license & judicial review.
Mandatory Financial Support: the government may require a person to pay fees to support a comprehensive program that is benefiting the person, even if some of the money is being used to support ideas offensive to the person. However, mandatory financial support will violate the 1st amendment if the primary purpose of the program is to require individuals to pay subsidies for speech to which they object.
i.e., gov employees can be made to pay dues to a union even if they refuse to join the union b/c the gov may allow the unions to negotiate benefits for all and impose a reasonable service charge. But the gov employee cannot be required to pay more that reasonable service charge or fees that would be used to contribute to political candidates.
i.e., attys can be required to pay mandatory bar dues, as long as the money is used legal profession
i.e., mushroom handlers objected to paying subsides that were used solely to generically advertise mushroom. Unlike other cases that the fees were used to support a comprehensive program, in this case the fee was used primarily to fund advertising that which the (s objected to.
1) Clear and Danger of Imminent Lawlessness / “Incitement”
Speech may be suppressed if under the circumstances there is a “clear and present” danger to which it would bring about the substantive evil that congress has sought to prevent. The modern test is that (Brandenburg) gov may prohibit speech if the speech is intended to incite imminent lawlessness and that there is a substantial likelihood that the speech would incite or produce such action
➢ Exam Tip: on every exam, you must raise this test and then knot it down since there must be a substantial likelihood that would produce imminent illegality
i.e., KKK from giving speech to putting out the fire, to taking out their robes, to get in their cars, to go out in city and find an official for revenge, is too remote: there wasn’t substantial likelihood of imminent lawlessness
I.e., clear and danger test did not apply in Tinker case: the political message conveyed by students wearing black armbands to protest the War was not substantially likely to produce in an imminent illegality
← If there is reasonable feasible less restrictive alternatives available, the regulation is not narrowly tailored and fails SS.
2) Fighting Words
States are free to ban the use of “fighting words.” Fighting words are those abusive words that are likely to incite immediate breach of peace or physical retaliation when addressed to an average person. (Chaplinsky). Words that are merely annoying and offensive or words that are not directed to the person of the hearer are not fighting words (Fuck the draft is not fighting word, but calling a police “a Goddamned racketeer” and “a damned Fascist” is fighting word. It’s a fighting word if John Wayne would retaliate and hit back).
➢ While this classification of punishable speech exists in theory, statutes that attempt to punish fighting words are vague or overbroad, and thus unconstitutional.
➢ Also fighting words statutes that prohibits words only if they convey a particular massage based on hate crimes such as race, religion or gender motivated, are invalid. However state can increase a punishment for crimes that ( selected the victim based on race. (Aggravated punishment for racially motivated crimes is allowed)
➢ If gov selects what fighting words can be prohibited and what fighting words cannot be prohibited, that is content based regulation (subject matter regulation)
3) Obscenity (Miller test)
1) Appeal to Prurient Interest
Prurient interest in sex includes that which appeals to shameful or morbid interest in sex of an average person in the community, but not that which incites lust.
- Additionally, the manner and circumstances under which the allegedly obscene material are advertised or sold may be probative of their “prurient” appeal.
- Must use the word prurient to be constitutional. A statute that used “lustful or lascivious thoughts” was held not to protect against obscenity and was held unconstitutional
- Local standards/ local group/ Average person: both sensitive and insensitive adults may be included in determining contemporary community standards (but children may not be considered part of the relevant audience)
2) Patently Offensive
State law determine what materials are patently offensive (State or local law, must delineate what descriptions are patently offensive.)
3) Lack serious LAPS value
Whether a material has redeeming value (literary, artistic, political or scientific value) is determined based on social values of the nation.
( Note that two different standards are used in the obscenity test: appeal to the prurient interest and offensiveness are judged by contemporary community standards (local or statewide) while LAPS value is judged on national standards
Private Possession of Obscenity at home: private possession of obscenity at home cannot be made a crime because of the constitutional right of personal privacy. This protection does not extend beyond the home. Thus the importation, distribution, and exhibition of obscene materials can be prohibited
The government may seize the asset of businesses convicted of violating obscenity laws
i.e., ∆ owned a chain of adult bookstores and movie theaters. He was convicted for selling 7 obscene items. He was sentenced to prison and fined. In addition, the govt seized $9 million of merchandise and destroyed it. SC said it is OK to seize the inventory of a business that sells obscene material.
Child Pornography is unprotected speech, not because they may be obscene, but rather because of state’s compelling interest in protecting its minor children from exploitation.
← However, in order to be considered child pornography, children must be used in its production. Simulated pictures of minor, computer generated images or using young looking adult does not convert pornography into child pornography. If no children are used, the material cannot be deemed child pornography
← The government may not punish private possession of absence material in one’s home, but mere possession of child pornography, even at private home, is not protected and can be criminalized since gov has a compelling interest in protecting minors from exploitation.
Non-Obscene Sexually Explicit Material
The gov may use zoning ordinance to regulate the location of non-obscene sexually explicit materials such as adult bookstores and adult theaters if the regulation is designed to reduce secondary effect of such businesses (i.e., rise in crime rates, drop in property value and neighborhood quality). However, regulations may not ban such establishments altogether
i.e., Detroit used an ordinance to limit the number of adult places on any block ( its okay
i.e., a city adopted a zoning ordinance requiring all adult places to be in a single unpopulated area of the city( its okay
i.e., “erogenous zoning is permissible”
( Porno is not necessary obscene; it is sexually explicit
The broadcast medium receives limited 1st amend protection. Indecent broadcasts during times when children are likely to be tuned in are outside the pale of protected speech. Indecent language involving media is outside the protection of 1st amendment. gov can regulate TV and cables to prevent children from viewing sexually explicit materials, but must use a friendly software (the adult have the right to see porno – TV cables have the capacity to be blocked on household by household bases , and be scrambled by using friendly software)
Framework for TV/ Cable and broadcast media
1st: Content based ( SS
Morality is compelling reason to block the view at the times when children tend to be home. Means used must be narrowly tailored, however because of the availability of reasonable less restrictive feasible means is available, namely using an owner friendly software to block and scramble when desired, the regulation was unconstitutional. Children cannot have veto over what adults would want to see (media has limited 1st am protection)
Profane and indecent speech
Profane and indecent speech is generally protected by the 1st amend. However, profane and indecent speech may be regulated 1-over broadcast media (radio, TV, Cable, internet) b/c uniquely accessible to children and intrusive into private homes, and 2- in schools b/c there is a responsibility for teaching civilized discourse.
I.e., its OK to wear a shirt in court that says, “Fuck the draft”. To censor words is to censor ideas
i.e., Broadcast media exception applied to free over the air and radio broadcasts, i.e., gov can prohibit profane content and indecent speech over radio and TV and web
i.e., Mathew Frazier gave a speech in school that had profane and indecent language; his punishment was constitutional b/c his speech was not protected by 1st amend
( Sexually explicit, indecent or profane languages are not obscene and thus Miller test (obscenity test) does not apply to them, but rather such content based regulations are subject to SS
• Sexually explicit and indecent materials on Internet
Restrictions on indecent and sexually explicit Internet speech violates the 1st amendment if less restrictive alternatives are available such as:
1. where indecent speech properly defined can be “tagged” making exceptions for messages of artistic or educational value,
2.where some portions of the internet-commercial web sits could be regulated differently from others such as chat-rooms
3. where user-based screening software may be developed to filter out indecent speech to minors
4) Defamatory Speech
Falsity
- The fact that a publisher labels a statement as “opinion” will not provide 1st amend protection if the statement would reasonably be understood to be a statement of fact.
P figure/official= falsity + malice
Private ( on Public matter = falsity + negligence
Private ( on private matter= falsity + statement was made
Fault
- Actual Malice is defined as “knowledge of falsity of the statement or reckless disregard as to its truth or falsity. The ( must show that the ( was subjectively aware that the statement he published was false or that he subjectively entertained serious doubts as to its truthfulness.
i.e., “Quotation” proof that a defamation ( was inaccurately quoted does not, by itself, prove actual malice, even if the quotation was intentionally altered by the (. If the published “quotation” is substantially accurate, the ( may not collect damages. To show malice, the public figure ( must prove that the alteration of the quotation substantially and materially changed the meaning of the actual statement made by the (
- Public Figure: a person may be a public figure if he achieves “general fame or notoriety” and has a pervasive involvement in the affairs of society, or has “voluntarily inject” himself or has drawn into a particular public controversy to influence the resolution of the issues involved
i.e., celebrities are public figure
i.e.,“a citizen’s participation in community and professional affairs” does not render him a public figure for all purposes – by (’s involvement in a particular public controversy, he becomes a public figure for a limited range of issues involving that particular controversy
- Not Public Figure:
Spouse of wealthy person, marriage or divorcing a wealthy person, person engaging in criminal conduct, scientists in federally funded programs, they are not within public arena even there is lots of publicity
does not amount to voluntarily entering the public arena, even though there
- Private ( suing on matter of public concern ( at least negligence
When the defamatory statement involves a matter of public concern, Gertz imposes two restrictions on private (s: 1-it prohibits liability without fault, 2-it restricts the recovery of presumed or punitive damages. thus the ( must show that the ( was at least negligent in failing to ascertain the truth of the statement.
- Showing “Actual damages”: If ( establishes negligence but not malice, he also has to provide competent evidence of “actual damages” (this changes the C/L rule that damages would be presumed by law for injury to reputation and did not need to be proved by (). Actual damages may be awarded not only for economic losses but also for injury to (’s reputation in the community and for personal humiliation and distress. On the other hand, if the private ( suing on a matter of public concern establishes malice instead of negligence on part of (, the proof “Actual damage” requirement is extinguished and ( can recover whatever damages are permitted under state law (usually presumed damages and even punitive damages in appropriate cases).
- Matter of public concern is determined on a case by case basis by looking at the content, form and context of the publication.
i.e., in Dun & Bradstreet, the court determined that a credit agency’s erroneous report of (’s bankruptcy, distributed to five subscribers, was speech solely in the private interest of the speakers and its specific business audience. (, the 1st amendment restriction did not apply and the state court award of presumed and punitive damages as upheld.
- Private ( suing on a matter NOT of public concern
The court has not imposed constitutional restrictions on defamation actions brought by private ( that do not involve a matter of public concern. ( Presumed and punitive damages can be recovered even if malice is not established. (when ( is a private individual and the matter is a private concern, ( can recover compensatory, presumed or punitive damages by showing falsity)
Privacy
The government may not create liability for the truthful reporting of information that was lawfully obtained from government record
I.e. there was a statute that prohibited reporters from revealing the names of rape victims. Reporters found the victim’s names from public record and revealed them in violation of the statute. Crt ruled in favor of press. Since the press lawfully obtained the information it cannot be held liable for reporting it.
Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media didn’t participate in illegality & involves matters of public concern
I.e. 2 officials of a school were having a conversation on a cell phone, which was somehow recorded. A radio talk show host got the conversation and played it on the air. The teachers sued and lost. Since the radio got the information legally and the content of the conversation was of public importance there was no liability.
The govt may limit its own dissemination of information to protect privacy
- The govt is not required to turn its information over to the press.
- Exception – Press has a 1st Amendment right to be present at most stages of criminal trials.
5) Commercial Speech
i.e., the court uses the commercial speech test to strike down statutes prohibiting truthful advertisement for legal abortions; contraceptives, and drug prices
i.e., newsracks (on BAR); a city could not prohibit the use of newsracks on sidewalks for the distribution for commercial publications (such as free publications advertising rental apartments, real estate for sale or products) if the city allowed sidewalk newsracks for the distribution of newspapers. This city law failed the commercial speech test b/c there is no “reasonable fit” between the category of commercial speech and any substantial interest. Commercial newsracks did not cause any physical or aesthetic harm different from that caused by newspaper newsracks.
i.e., Beer bottle labels; a law banning beer bottle labels from displaying the alcoholic content is invalid as a violation of the brewer’s free speech rights since the law applied only to labels, not to advertising, and only to beer, not to wine or any other alcoholic beverage, and more importantly it does not directly advance the government’s interest in any material way
i.e., advertisement of harmful, yet lawful product such as cigarettes, smokeless tobacco, liquor, and gambling – there cannot be a complete ban on truthful advertisement of lawful product yet harmful i.e., a law prohibiting advertising of smokeless tobacco and cigars within 1,000 feet of a school or playground, which amounted to a complete ban in may areas, was held invalid. even though such a ban directly advances the substantial government interest in preventing underage use of those products, its geographic reach demonstrates a lack of tailoring, thus unduly affecting use of tobacco products by adults which is a legal activity
i.e., billboards; it is within a state’s police power to prohibit billboards carrying commercial advertising. a city may regulate billboards for the purpose of highway safety and aesthetics, however it may not distinguish between different types of messages. It is unclear whether total ban on billboards would be upheld.
i.e., for sale signs; a town could not prohibit the use of outdoor “for sale” sign by owners of private homes as a way of reducing the effect of blockbusting real estate agents.
i.e., drug prices; a statute cannot place an absolute ban on the advertisement of drug prices by a pharmacist.
i.e., contraceptive; federal law making it a crime to send unsolicited advertisement for contraceptive devises held invalid.
i.e., illegal or deceptive advertising; a state may prohibit commercial advertising of matters which are illegal (e.g., prostitution), or advertising which is untruthful, misleading or deceptive. I.e., newspaper enjoined from running help-wanted ads headed “male” or “female” b/c such classifications violated prohibition against sex discrimination under a local ordinance.
i.e., the 21st amendment (giving the state power to regulate liquor commerce within their boarders) does not give state the power to override 1st amendment protection. But just like zoning ordinances, 21st amendment gives the state the power to regulate circumstances under which the liquor is used or sold, i.e., state can use 21st to limit showing of adult motive where liquor is sold.
i.e., true commercial speech that inherently risk deception can be regulated: the gov may prohibit professionals from advertising or practicing under a trade name, i.e., optometrists cannot use trade name b/c they fool the public
Attorney Advertising
The commercial speech test applies to attorney’s advertisement as well.
i.e., the court has struck down a statute banning attorney’s advertising the nature and price of his service. Also ban against advertising status as certified or specialist is struck down so long as it is true.
But, the court upholds statutes that ban attorney’s “in-person” solicitation for pecuniary gain. State interest in protecting laypersons from fraud and overreaching is substantial, and prohibition here is narrowly tailored and directly advances that interest. Also state can prohibit sending mail solicitations to accident victims and their relatives within 30 days following an accident since state interest in protecting lawyer’s reputation is substantial, and the ban here is narrowly tailored and directly advances that interest.
i.e., regulation banning attorneys from mailing new office opening announcements to persons “other than lawyers, clients, friends or relatives” is invalid
I.e. an ambulance-chasing lawyer went to victim’s hospital room. Was disciplined by the bar. L raised 1st and lost. When a L solicits a client face-to-face there is no one to monitor them and too much room for deception and pressure.
i.e., Not in-person - L is allowed to send letter solicitation, b/c it is not face-to-face and if there is deception we have a written record
i.e., Not for profit – When a lawyer offers free representation to a client there is less fear for deception, ( it is protected speech
Certified Public Accountant’s Service
A state may not ban (unlike attys) uninvited in-person or telephone soliciting, and advertising for business, by certified public accountants (CPAs). The court held that the ban on CPA solicitation was not reasonably tailored to protecting consumers because the state failed to demonstrate that this type fo solicitation by CPA presented potential danger to consumers (as would in person solicitation by attys). A CPA cannot be prevented from truthfully indicating that she is a “certified financial planner” and an atty, b/c these terms are neither false nor misleading
The government may not prohibit accountants from in-person solicitation of clients for profit
i.e., Florida made a law trying to apply a law to accountants that was the same as the law to L’s. Crt said that accountants are accustomed to accuracy, ( there is no fear for deception.
Note: commercial speech is not protected and can be regulated but political speech is protected and cannot be regulated i.e., politician can lie to get on the ballot
“Announce clause”: (Bar regulation that prevents a public candidate to commit or give comment about an issue that might come before him after election( unconstitutional):
▪ it is a violation of core 1st Amend rights to prevent candidates during an election campaign for judicial office from stating their view on issues that may come before the courts.
Time, Place and Manner Regulation (= Content Neural)
Public & Designated Public Forum
1- Content neutral = the regulation must be both subject matter and view point neutral, i.e., cannot prefer some messages over others. If the regulation was not neutral, it would be a content based regulation and would have to meet SS.
i.e., an ordinance that allows peaceful labor picketing (protest, complain) near schools, (prohibiting other kinds of picketing) is invalid b/c it is content based restriction ( it restricts speech by subject matter, i.e., labor picketing
i.e., a law that says no demonstration or signs within 500 feet of a foreign embassy that are critical or offensive to the foreign gov is invalid b/c it is content based regulation ( it restricts speech by view points, i.e., cant say disfavor-able things
2- Narrowly tailored = it may not burden substantially more speech than is necessary, however it need not be the least restrictive method
i.e., NY adopted an ordinance that said in order to have a concert in city park, must use city speakers and city technicians. ( said they should restrict type of equipment or decibels of noise or time of their performance, but the court said that the regulation was okay b/c city does not have to use the least restrictive alternatives.
* i.e., narrowly tailoring means may include having educational campaign, public campaign or school campaign or awareness classes, or increasing tax on that particular product
3- Significant interest = traffic safety, orderly crowd movement, noise control, personal privacy, aesthetics, health and morals, litter/waste control …almost any legitimate interest satisfies this
i.e., a law that says no person within 100 feet of health care facility shall approach within eight feet of those who are seeking access to the health care is valid: b/c it is content neutral, and it is a reasonable TPM restriction that served the important interest of preserving access to health care faculties.
4- Alternative channels = other reasonable means for communicating
i.e., city had an ordinance saying that no trucks w/ sound amplification equipment could operate in residential area at night. ( that is okay b/c it serves the interest of keeping a neighborhood quite and lets them be there a lot of other times (i.e., during day), and place (i.e., commercial areas)
• Zoning ordinance
Narrowly drawn zoning ordinances that target the secondary ill effects of speech such as prevention of crime, maintenance of property value or the quality of urban life, are content neutral and such regulation are valid so long as the regulation is reasonable with respect to TPM and leaves open ample alternative channels of communication to accommodate such expression. (gov has substantial interest in preventing crime, …)
• Residential areas: a law that prohibits picketing (protest, complain) in front of a single residence is valid b/c (street/sidewalks is public forum) 1-the regulation is content neutral since it regulated the location and manner of picketing rather than its message, 2-it was narrowly tailored since it applied only to residential picketing, 3-it served an important interest of protecting a homeowner’s privacy, 4-alternative means of communication were available since the protesters could march through the neighborhood in protest.
• Charitable solicitation (public forum); a law requiring fundraisers to disclose the percentage of contributions collected over the pervious year is invalid b/c the disclosure does not necessary promote the state interest of protecting the public from fraud.
(but a law requiring a fundraiser to disclose her status is valid b/c 1-it is content based neutral, 2-it is narrowly tailored since it only requires disclosure of status, 3- it serves a significant state interest of preventing fraud, 4-alternative challenges are open
• a law requiring a permit in order to canvass door to door (public forum) for noncommercial or non-fundraising purposes is invalid b/c requiring permit does not necessary promote the state interest in protecting the public from fraud.
1- Reasonable TPM
Subject M
2- Content neutral: all Viewpoint
No discretion
Significant state interest
3- IS
Narrowly tailored
4- Ample Alternative Channels
• Schools are generally not a public forum, however, if a public school or university allows private organizations and members of the public to use school property for meetings when school programs or classes are not in session, the property is a designated public forum for that time, and the school cannot deny a religious organization permission to use the property for meetings merely because religious topic will be discussed.
• Injunctions; if the injunction is content based, it is presumed to be unconstitutional unless it is necessary to achieve a compelling state interest. On the other hand, if the injunction is content neutral, it will be upheld if it burdens no more speech than is necessary to achieve a significant government purpose. (Injunctions also raise “prior restraint doctrine”)
• Adult movie theaters & Zonings: a ban on adult movie theaters in residential or church, park, or school zones is content neutral. It is aimed at curbing the empirically proven secondary ill effect of such speech on the surrounding communities such as crimes, moral and property values. Because gov has substantial interest in protecting moral, property values and crime prevention, and because the regulation is content neutral, such ban on adult motives theaters are valid as a means of regulating Time, Place and Manner of such businesses so long as it leaves reasonable alternative challenges of communication open to accommodate such expression.
Non-Public Forum
1- View Point Neutral
Regulations on speech in non-public forums can be subject matter based regulation but the regulation must be viewpoint neutral
i.e., if the gov allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one view.
i.e., if a high school newspaper is a nonpublic forum, a school board could decide to prohibit articles in the paper regarding nuclear power. However, if it decides to allow articles in the paper regarding nuclear power, it may not allow articles in favor of nuclear power and prohibit articles against it.
i.e., the gov may discriminate based on the identity of the speaker in nonpublic forums i.e., a school board might limit speakers to licensed teachers. But must not favor one point: must be view point Neutral
i.e., public properties that are not open to general public (such as jailhouse and schools) can be regulated substantially. State may prohibit demonstrations on jailhouse grounds. Also military bases may be closed to public speeches and distribution of leaflets. Purpose of a military base is to train soldiers, not to provide a public forum.
i.e., a city may sell space for commercial advertising on city buses, but refuse to sell such space for political advertising.
i.e., school that changed status: a public school may not deny use of its faculties to religious group if other public and private groups are allowed similar access. Schools are traditionally a non-public form but because once the school gives access to public or private groups for speech related activities becomes a limited public forum for that purpose, the regulation must be content based neutral, serve a significant state interest, narrowly tailored & leave ample alternative channels of communication open and since the school became a limited public forum and b/c denying access only to religious group is a form of content based regulation, regulation is invalid.
2- Reasonableness (RBR)
Regulation of speech and assembly in non-public forums need only be rationally related to a legitimate gov purpose
i.e., a city bus is not a public form. The city, therefore, may constitutionally sell space for signs on the public buses for commercial and public service advertising while refusing to sell space for political or public issue advertising in order to minimize the appearance of favoritism and the risk of imposing on a captive audience.
( BZ for legitimate purpose: to limit the appearance of favoritism, and the risk of imposing frustration on captive audience
• * Speech in School (2 kinds: 1-pure student speech, 2-school-sponsered speech):
Student speech: public school educators may validly prohibit the use of obscene or profane language or lewd gesture as a part of school’s mission to inculcate students on the boundaries of civilized and socially appropriate behavior. (Bethel school 403). Additionally, a school may “exercise editorial control over the style and content of student speech in school-sponsored expressive activities (i.e., content of school’s newsletter) so long as it is reasonably related to legitimate pedagogical concerns” (Hazelwood school district)
1- Viewpoint Neutral
( the regulation can be subject matter based regulation but it must be view point neutral
2- RBR:
( Reasonably related to a legitimate gov purpose
i.e., military bases are not public forum( on-base speech and assembly may be regulated, even during open houses where the public is invited to visit (open to visit does not turn a non-public forum to a limited forum). However, if the military leaves its streets open as thoroughfares, they will be treated as public forum
i.e., Generally, schools and curriculum-based school activities are non public forum i.e., UCLA, speech in schools may be regulated so long as it is view point neutral and meets RBR, i.e., schools can control the content of student speech i.e., the subject matters and not view points
i.e., Exam: student suspended for sexually explicit speech at school is okay b/c prohibiting sexually explicit speech is a form of subject matter regulation and not view point regulation and school’ mission is to inculcate student on boundaries of civilized and socially appropriate behavior.
i.e., gov may conduct an annual fundraising drive which includes some charities but excludes others (e.g., all charities that lobby). However, it cannot exclude a charity merely because it disagrees with the organization’s political views.
i.e., a state may develop a system for meeting with and hearing the views of a select group of its employees while denying it to other gov employees i.e., union representatives and not bird watchers representatives. (if it was open to public organization, then it would be public forum and thus gov could not select to hear one group over another (content neutral requirement of public forums means that the regulation must be both subject matter and view point neutral)
Leaf-letting v Solicitation in Airport: underlying the distinction between solicitation and leaf letting is that solicitation poses a greater risk when travelers and others are stopped and asked for money whereas the sale and distribution of literature do not present the same danger and problems.
• * Speech in School (2 kinds: 1-pure student speech, 2-school-sponsered speech):
Student speech: public school educators may validly prohibit the use of obscene or profane language or lewd gesture as a part of school’s mission to inculcate students on the boundaries of civilized and socially appropriate behavior. (Bethel school 403). Additionally, a school may “exercise editorial control over the style and content of student speech in school-sponsored expressive activities (i.e., content of school’s newsletter) so long as it is reasonably related to legitimate pedagogical concerns” (Hazelwood school district)
• Government subsidy and Free Speech:
1. The constitution allows for view point/content neutral discrimination by state in its capacity as government-as-speaker and gov-as-buyer.
2. Gov may selectively fund a program to encourage activities it believes to bin the public interest and set forth the “public interest criteria” for disbursement of funds. It is not required at the same time to fund an alternative program that seeks to deal with the problem in another way.
3. When gov creates a “limited public forum” and funds a program encouraging a diversity of views from private speakers, it may not use the coercive power of its funding to engage in view/ content based discrimination.
4. Gov may not subsidize a program involving litigation in a given area and thereafter insulate itself from legal challenges on the subject if other avenues for mounting such challenges are foreclosed.
• Gov may validly refuse to fund or subsidize certain speech-related activities from the public fisc and fund only programs designed to foster its own viewpoint. (limitation: in non-public forum, just because the government subsidizes doesn’t means that the gov gets to choose which things is wants to fund)
• In block funding of the arts, while gov may set advisory guidelines to be followed in the award of grants, it may not pre-condition them on the basis that satisfy particular governmental message or tastes.
* Speech & Association of Govt Employee
Public employees have a constitutionally protected interest in freedom of expression. However in determining the validity of govt conduct with respect to govt employee, the court will weigh and balance the following factors: (Pickering balance)*:
1) The interest and personal grievance of the employee as a citizen,
2) whether the matter involved relates to a legitimate public concern,
3) the interest of the state as an employer in promoting the efficiency of the public services
4) and whether employee’s activities disrupted a close working relationship where it is essential to fulfill public responsibilities
i.e., Ranking v McPherson: police dispatcher says “if they go for him (Reagan), I hope they get him” ( it is “unrelated to a character trait related to work competency” ( cannot be fired.
Low-level govt employees are free to accept honoraria for speech outside the workplace so long as the speech is unrelated to their official govt duties
Excepting for certain high-level employees, the hiring and firing as well as the promotion, transfer, and recall after layoff decisions based upon a political patronage system unconstitutionally infringe on the employees freedom of political belief and association
The Pickering balance applies to all case of govt employees as well as govt contractor i.e., a trash-hauling contractor whose contract was terminated after publicly criticizing the county’s governing board, wrote critical letters to newspapers regarding mismanagement of taxpayers money ( unconstitutional terminating / canceling contract
▪ “an independent contractor is protected under the 1st amendment from retaliatory governmental action, just as an employee would be”
Private Property: the owner of a private shopping center is not required to allow access thereto for purposes of picketing or leafleting. However, a state’s constitution may be interpreted to protect such expressive activity in a shopping center’s public areas. Speech on private property, don’t even think of forum argument. RBR test applies.
• Owners of large shopping complexes do not have a right to exclude speakers or hand-billers from disseminating their message in areas of large shopping complexes open to the public so long as the owners have an opportunity to disavow the message. (Pruneyard)
Prior Restraints
MBE: Two kinds of prior restraint:
1-Administrative system (License or Permit requirement) ( IS
2-Judicial order (Injunction, Gag order, a prohibition against using mails, and Temporary Restraining Orders), content based ( SS
1) Administrative system ( IS
The government can require a license or permit for speech only if there is an important reason for licensing and the licensing scheme is not standardless.
- Not standardless = clear criteria leaving almost no discretion to the licensing authority + licensing schemes contains procedural safeguards such as prompt determination of requests for licenses + judicial review
2) Judicial orders – Strict Scrutiny
MBE Exam Tip: Gag orders on the press to prevent prejudicial pre-trial publicity are always unconstitutional. A fact pattern regarding a highly publicized crime. In order to ensure a fair trial, the court orders a gag order preventing the press from printing about it – not allowed
• Procedurally proper court orders must be complied with until they are vacated or overturned
➢ If a person violates a court order (constitutional or unconstitutional), the person is barred from later challenging it.
| Valid and Invalid Prior Restraints |
|Valid |Invalid |
|Prohibiting publishing of troop |Prohibiting publication of the |
|movement in times of war, b/c of |Pentagon papers b/c it might have an |
|compelling interest to protect |effect on Vietnam War |
|national security | |
|Enforcing contractual prepublication|Prohibiting grand jury witness from |
|review of CIA agent’s writing |ever disclosing testimony |
Obscenity is unprotected speech, is unlawful, and can be enjoined by prior restrain in any manner.
If the restraining body wishes to restrain dissemination of an item, it must promptly seek and injunction e., improper to allow 50 days before seeking injunction- (laches?)
I.e., a prohibition against use of mail and postal money order to a person using them in transactions with obscene material. Obscenity, miller test, ( unprotected and can be regulated. However the injunction failed to assure prompt judicial review, and failed to limit any restraint in advance of a final judicial determination for the “shortest fixed period compatible with sound judicial resolution”
There must be a prompt and final judicial determination of the validity of the restrain e.g., improper to leave an injunction in place pending an appeal that could take up to a year; gov must either lift the injunction or expedite the appeal
i.e., 15 feet floating buffer zone case: the statue was found content neutral, there was a valid state interest in access and privacy especially for those with vulnerable physical and emotional conditions, and was narrowly tailored in way that did not burden more speech than was necessary.
Compelling circumstances to uphold Prior Restraint:
- National security is sufficient harm to justify prior restraint.
- Preserving a fair trail may be a sufficient bases for prior restraint if there is no less restrictive means available (but they are always struck down as unconstitutional since less restrictive means by changing venue is available
- Military and maintaining discipline among troops and sufficiency of operation on military bases may justify a requirement that person on a military base obtain the commander’s permission before circulating petitions
i.e., parts of an injunction establishing 36-foot buffer zone between protesters and abortion clinic entrances were upheld as content neutral injunction since it burdened no more speech than was necessary to achieve a significant sate interest. On the other hand, an injunction providing for a “floating buffer zone” of 15 feet between protesters and person entering and leaving an abortion clinic was held to violate 1st amendment ( the floating zone barred all verbal and written communication from a normal conversational distance on public sidewalks, and thus burdened more speech than necessary to ensure ingress and egress from the clinic.
Prior Restraint and Obscenity Cases: the court has held that gov’s interest in preventing the dissemination of obscenity is sufficient to justify a system of prior restraint. Seizures of a single book or film may be made with a warrant based on probable cause, although if the item is available for sale to the public, a police officer may purchase a book or film and uses as evidence without a warrant. Large-scale seizure must be proceeded by a fully scale adversary hearing and a judicial determination of obscenity.
Movie Censorship: The court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. Thus, the court allows the gov to establish censorship boards to screen movies before they are released, as long as the procedural safeguards are met.
Symbolic Speech
Protected as symbolic speech( CANNOT be regulated:
1) Arm Band: a prohibition against students wearing armbands to protest the war in Vietnam is unconstitutional b/c wearing an armband to protest a war is a conduct that conveys a message, hence such conduct is protected as symbolic conduct ( cannot be regulated, banned or punished.
2) Flag burning is a conduct that conveys a message, thus such conduct is protected speech as symbolic speech and hence gov cannot prohibit or punish flag burnings.
3) Burning a Cross or painting a swastika is a conduct that conveys a message, thus such conduct is protected as symbolic speech unless there is proof of intent to intimidate or threaten.
Not Protected ( can be regulated:
1) Draft card burning: draft card burning regulation upheld ( not aimed at the content of speech but at the conduct ( however b/c gov has an important interest in facilitating the smooth functioning of the draft and since it is unrelated to suppression of speech, it is not protected speech and thus can be regulated.
( Draft card burning is not protected speech, so it can be regulated
2) Nude dancing: may be construed as a conduct that conveys a message and thus should be protected as symbolic speech. However since the gov has a “substantial interest in morality and combating crime and other secondary effects” caused by nude dancing or the presence of adult entertainment and because such regulations is unrelated to the suppression of free expression, nude dancing is not protected speech and therefore nude dancing can be regulated or banned.
( Nude dancing is not protected by 1st Amend, so it can be prohibited
3) Election contributions: contributions to an election is not a conduct that conveys a message, thus such conduct is not protected as symbolic speech, therefore regulations and limitations on contributions are constitutional, however limitation on expenditure by the candidate is unconstitutional.
i.e., the gov can limit the amount anyone can give any specific candidate. However the gov cannot limit the amount the candidate spends over all.
4) Hate motivated crimes are not conducts that conveys a message, thus hate motivated crimes are not protected by 1st amendment as symbolic speech, hence the gov can regulate and punish such conduct.
( the gov may impose grater punishment when the conduct is haste
1st) Facial Attack
Expression 2nd) Forum
Public Forum designated Public Forum Non-Public Forum
Track 1 Track 2
3rd) Content Based Regulation vs. Content Neutral Regulation (TPM)
Unprotected categories of Speech
5th) Speech in School
6th) Gov Subsidy
7th) Gov Employee
Alternatively,
4th) Symbolic Speech
Freedom of the Press
Generally, the press has no greater first amendment freedom than does a private citizen.
Publication of Truthful information: generally the press has a right to publish truthful information regarding a matter of public concern (it right can be restricted only b sanction that is narrowly tailored to further an interest of the highest order)
• The right applies even if the information has been unlawfully obtained in the first instance, as long as 1-the speech relates to a matter of public concern, 2-the publisher did not obtain it unlawfully nor know who did, 3-the original speaker’s privacy expectation are low.
I.e., teacher’s union and school boar conversation was intercepted and the tape was given to radio station, which broadcasted it on the air. Radio was sued for damages under wiretap laws. Crt held for radio since it was matter of public concern (union negotiation), no expectation of privacy on cell phone, and radio did not itself intercept or procured the interception.
Right to access Trails (( Balance right of press against accused’s right to fair trail) + Due Process / 6th am cross over: 1st, 6th & Due Pro
The 1st Amend guarantees the public and press a right to attend criminal (and probably civil) trials. However, this right may be outweighed by an “overriding” interest stated in the trial judge’s finding and that the interest involved cannot be accommodated by any less restrictive means, i.e., closure of trial must be narrowly tailored to preserve a higher value i.e., to protect children who are victim of sex offense.
- In a closure of the trial during testimony of a child victim of a sex offense, if such statute did not provide for the judge’s finding that the closure is necessary to order closure, the statute would violate press’ 1st amend.
- There will be a 6th amend violation of the accused if the judge excludes the public and the press from the hearing or trail of the criminal defendant without a clear finding that a closure order was necessary to protect an overriding interest
- The right includes the right to be present at voir dire and at other pretrial proceedings, unless the judge makes a specific finding that closure was narrowly tailored to preserve a higher value
“Gag” order, a pre-trial order prohibiting the press from publishing certain types of information, will almost never be held constitutional as a violation of 1st amend rights b/c the trial judge has other alternatives at his disposal such as change of venue, postponement of trial, etc
Requiring Press to Testify Before Grand Jury: a newsperson has no 1st Amend right to refuse to testify before a grand jury. There is no newsperson’s privilege that allows journalists to refuse disclosure of their confidential sources.
Interviewing Prisoners: the 1st amend does not give journalists a right to interview prisoners of their choice or to inspect prison grounds.
Business Regulations or Tax: the press and broadcasting companies can be subject to general business regulation or taxes but cannot be targeted for special regulation or taxes. Thus, a tax or regulation applicable to both press and non-press businesses will be upheld, even if it has a special impact on a portion of the press or broadcast media, as long as it is not an attempt to interfere with 1st amend activities. However a tax or regulation impacting on the press or a subpart of the press cannot be based on the content of a publication absent a compelling justification.
i.e., state tax on publisher’s use of more than $100,000 of paper and ink products annually violates 1st amend
i.e., state sales tax or “receipts tax” on the sale of general interest magazines that exempts newspapers and religious, professional, trade, and sports journals from the tax violates the 1st amendment
( a tax exemption cannot be given to “medical journals” absent a compelling justification. Tax exemption to one type of journal but not anther violates 1st amend b/c it is a content based regulation.
i.e., A state sales tax that exempted the sales of newspaper and magazines from the tax but did not give a similar exemption to the sale of broadcasts services (cable or subscription TV) did not violate 1st amendment. the tax was not based on the content of broadcasts and did not target a small category of publishers. The tax was applicable to all cable or satellite TV
• Broadcasting Regulation (Radio & TV)
Due to the limited number of frequencies and airwaves available, radio and television broadcasting may be more closely regulated than the press. The paramount right is the right of viewers and listeners to receive information of public concerns rather than the right of broadcast what they please. Additionally because of broadcast’s ability to invade the privacy of the homes, such broadcastings can be more closely regulated than the press. Thus, (indecent speech on air) a radio broadcast airing a full monolog of patently offensive sexual and excretory speech”, even though not “obscene” under Miller test, can be regulated and sanctioned to protect the privacy interest of children that are likely to be listening at those hours of day.
( MBE Tip: regarding newspaper, a statute that requires newspapers to give equal space to opponent to reply to criticism by the newspaper (i.e., right of reprisal once a person is defamed), such law violates the newspapers’ 1st amendment right (decisions respecting size and content of newspaper are forbidden by gov). While regarding TV and Radio broadcasts, since the airways are limited, requiring the broadcast to allow free broadcasting time to opponent or any person who has been personally attacked in the course of broadcast, to reply to the attack does not violate broadcast’s 1st amend (statutory right of access in press in unconstitutional but in broadcast is okay)
• Cable TV Regulation
Because the physical connection to a viewer’s TV set makes the cable subscriber a more captive audience than a newspaper reader and since cable channels are not limited like radio airwaves and frequencies, cable TV receives 1st amendment protection somewhere between Radio air broadcast and newspaper. As a general rule, if cable TV operators are subject to content-based regulation, strict scrutiny is applied. on the other hand if content neutral regulation is imposed, the regulation is subject to intermediate scrutiny.
i.e., a law requiring cable operators to limit “sexually oriented” programs to after 10 pm is invalid because it is subject to strict scrutiny and the regulation fails the test since less restrictive alternative of enabling each households to block undesired channels is available.
i.e., a law requiring cable operators to carry local stations is subject to intermediate scrutiny since it is content neutral. Since a “must carry” provision directly serves the important interest of persevering economic viability of local broadcasters and promotes the dissemination of information to non-cable viewers, it is constitutional
Internet Regulation
In contrast to broadcasting, there is no scarcity of frequency on the internet and little likelihood that the internet will unexpectedly invade the privacy of the home. Thus, the strict standard of 1st amendment scrutiny, rather than the more relaxed standard applicable to broadcast, applies to regulation of the Internet.
Freedom of Association
• As a general rule, to punish membership in a group it must be proven that the person:
1) Actively affiliated with the group,
2) Knowing of its illegal activities &
3) With the specific intent of furthering those illegal activities
i.e., a state’s interest in ending invidious discrimination justifies prohibiting private clubs that are large and basically unselective in their membership, or used for business contacts, from discriminating on the basis of race, creed, color, national origin, or sex.
i.e., compare, a state anti-discrimination law may not bar the Boy Scouts from excluding an openly gay assistant scoutmaster from membership. Forced inclusion would significantly burden the right of expressive association of the Boy Scouts, since one of the sincerely held purposes of the Scouts is to instill certain moral values in young people, including the value that “homosexual conduct is not morally straight.”
i.e., a city ordinance that restricted admission to certain dance halls to persons between the age of 14 and 18 was constitutional; it did not have to be justified with a compelling interest b/c the associational activity of meeting in a dance hall is not an activity within the protection of the 1st amendment.
BZ for counter argument: the state demand in ending discrimination is a compelling interest unrelated to the suppression of ideas that cannot be achieved through means that are significantly less restrictive of associational freedom
• Disclosure of Associations
The government may not force disclosure of organizational member in exchange for a government employment or other benefit. Laws that require disclosure of group membership, where such disclosure would chill association, must meet SS
i.e., in 1958 Alabama had a law that required group like the NAACP to disclose its membership list. Crt said it would chill association( it was unconstitutional
• An individual cannot be denied public employment based upon membership in a political organization. Under modern test (Scales v. US) an individual may not be punished or deprived of public employment for political association unless: 1) he or he is an active member of a subversive organization; 2) such membership is within knowledge of the illegal aims of the organization; and 3) he or she has a specific intent to further those illegal ends (violent overthrow of the government)
- Party affiliation is not an appropriate requirement of the position of public defender.
• Freedom to associate does not protect the right to discriminate / or exclude others except:
1. Freedom of Intimate Association
i.e., if someone is not invited to a small dinner party, and they come, freedom of association will not let them in.
2. Freedom of Expressive Activity - where discrimination is integral to the expressive activity of the group
• An association that engages in expressive conduct may exclude from its ranks individuals or groups whose views or actions are contrary to or dilutes the beliefs of the association.
i.e., no Jews in Nazi group. No gays in Boy Scouts.
( Factors: When evaluating freedom of expressive association, Court will look at a number of factors including: 1-size of the organization, 2-its purpose, 3-policies, 4-selectivity and 5-congeniality
Loyalty Oaths
In the past, the court chosen to deal with loyalty qualifications under the “vagueness” and “overbreadth” doctrines, on the other hand, an oath that public employees will “support the constitution of the United States and will oppose the overthrow of the government of the United States by force, violence, or by any illegal or unconstitutional means” has been held valid.
• An oath requiring employees to support the constitution and to oppose the unlawful overthrow of the government is valid; but an oath requiring public employees to support the flag is invalid (since refusal to salute the flag on religious grounds might conflict with the oath)
Freedom of Religion
The First Amendment provides that “Congress shall make not law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both the Establishment and Free Exercise Clause of the 1st amendment apply to the states under the 14th Amendment.
“Free Exercise” Clause
CANNOT punish Beliefs:
A person’s religious belief are absolutely protected:
i.e., the Free Exercise Clause forbids state governments from requiring office holders or employees to take a religious oath as a condition for job or benefits (the federal gov is similarly restricted by Art 5) (don’t mix it with loyalty oath that are valid conditions on public employee not to overthrow the gov)
i.e., the Free Exercise Clause forbids states from excluding clerics from holding public office
i.e., the Free Exercise Clause forbids courts from declaring a religious belief to be false
i.e., a statute compelling a flag salute is unconstitutional (one’s religious belief may prevent him from saluting a flag)
i.e., state cannot require a person to carry a message on his license plate (e.g., Live Free or Die) which offends his religious belief
i.e., the gov may not determine the reasonableness of one’s religious belief, but it may determine sincerity
i.e., court may not find religious belief to be false. I.e., if a person says he talked to God, court cannot inquire into the reasonableness, truthfulness or falsity of it since it is based on the individuals religious belief. However court may determine whether the person is sincerely asserting a belief in a divine statement.
Conduct - generally can be regulated
Strong State interest overriding “free exercise” Claims i.e.,
Polygamy: State law outlawing polygamy upheld
Child Labor
Sunday closing laws: the court has upheld such laws b/c it furthers the state interest in providing a common day of rest. Upheld even though they placed Orthodox Jews and others who observe a religious holiday on Saturday at an economic disadvantage.
Taxes: Social Security tax applied to an Amish employer held valid, even though his beliefs forbade payment and receipt of benefits
Wearing religious attire: court struck down a free exercise challenge by Jewish Air Force cadet who violated uniform dress requirements by wearing a yarmulke while on duty.
Prison Regulations: a prison regulation restricting inmate’s constitutional rights (including 1st) will be upheld if the regulation is “reasonably related to legitimate penological interest”. I.e., court upheld a prison regulation regarding the work duties on inmates that precluded Islamic inmates from attending a religious service held on Friday afternoon.
7) Selective Service, military policy
8) Denial of Veterans’ benefit to conscientious objectors:
“Free Exercise” Claims overriding weak State Interest
Compulsory Education or School attendance: the court invalidated a law requiring children to attend school until age 16 (Amish belief forbids secondary education)
Unemployment compensation: a state cannot deny unemployment benefits to a person whose religious faith commands the observance of Saturday as the Sabbath. – Upholding right of individual not to accept “suitable work” on the Sabbath (a state cannot deny unemployment compensation merely because the applicant quit a job rather than work on a “wholly day” on which religious belief forbid work.)
i.e. a state cannot deny unemployment compensation merely because the applicant quit his job rather than work on production of military equipment after his factory converted from non-military to military production. All that is required is that the people sincerely hold religious beliefs that prevent him from working on a certain day or on military products.
Door-to-door solicitation: even this crosses over with “free speech”, the court held that a statute forbidding door-to-door solicitation as it applied to Jehovah’s Witnesses is unconstitutional.
Modernly:
Intentional interference:
i.e., a city law that prohibited the precise type of animal slaughter used in public or private ritual of a particular religious (not for the primary purpose of food consumption) violated the free exercise clause because the law was designed solely to exclude and was aimed at that religious. The law was not a neutral law of general applicability; nor was the law necessary to promote a compelling interest. The primary purpose of the law was not to prevent cruelty to animals, but to abolish the sacrificial ritual of a particular Cuban religious sect. Such purposeful interference is struck down using strict scrutiny (compare: “kosher” slaughter was permitted- food purposes)
Unintentional interference:
Where the gov regulation is of general applicability, it will routinely be upheld even it may have great burden on individuals. In other word, a law that regulates the conduct of all persons can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law.
i.e., a state criminalized the possession of peyote as a means of strengthening its drug and narcotics enforcement policy. The law burdens American Indians who used peyote for their religious rituals. The court upheld the law without applying either strict scrutiny or a balancing test since the regulation was a generally applicable ban and not motivated by any desire to burden religious conduct
Other examples of laws of general applicability include:
i.e., Denial of tax exempt status to schools that discriminate on the basis of race – challenged by religious school whose tenets require certain separation of races
i.e., requirement that employers comply with federal minimum wage laws – challenged by employer tat argued minimum wages interfere with members’ religious desire to work without compensation
i.e., requirement that employers pay social security taxes – challenged by person whose religious belief prohibited payment and receipt of social security type payments
i.e., sales and use taxes – challenged as applied to sales of goods and literature by religious group
Recap - Two things to know for “Free Exercise” Clause:
1) The Free Exercise Clause CANNOT be used to challenge neutral laws of general applicability UNLESS the law is motivated by a desire to interfere with religion
i. Smith – Oregon prohibited peyote. Indians sued b/c they smoked peyote as part of religion. SC said the law is neutral in the sense that it did not intend to discriminate against religion and it was a generally applicable law.
ii. If a law is motivated by a desire to interfere with religion, it must meet SS
iii. Similarly, if a law targets religion (not generally applied), it must meet SS.
2) The government cannot deny benefits to individuals who quit their jobs for religious reasons
i. Vernor – A woman in South Carolina quit her job rather than working on Shabbat. SC ruled that the state is impermissibly forcing her to choose between her religion and an income.
• To summarize, the Free Exercise Clause prohibits gov interference with religious belief, but it generally does not prohibit regulation of conduct. if the gov action regulates general conduct – including religious conduct- it is valid (e.g., banning any use of peyote is valid even though a group’s religious belief requires its use during its ceremonies). The only exceptions to this rule are unemployment compensation benefits and the education of Amish children.
2) “The Establishment” Clause
( Establishment Clause bars govt sponsorship of religion, government financial support to religion, active involvement in religious activities and official preference of one religious denomination over another. In other word, there has to be a wall that separates church / state.
Lemon Test: SEX test
1) There must be a Secular Purpose for the law (non-religious purpose)
i.e., Kentucky was not allowed to pass a law requiring 10 Commandments posted in classrooms
2) The primacy Effect must be neither to advance nor inhibit religion
(The govt must not symbolically endorse religion or a particular religion
i.e., ACLU- a nativity scene was placed in a courthouse, it was found unconstitutional. However, SC said Menorah along w/ a Christmas tree is allowed b/c they are secular symbols, AND there are symbols of more than one religion
( as long as symbol is secular and accompanied by symbols from other religions it will be allowed
3) There must not be Excessive govt Entanglement with religion
i.e., govt cannot directly pay teachers salary in religious schools
The establishment clause cases can be grouped into three categories:
(1) cases unconnected to financial aid or education; (2) cases involving financial aid to religiously affiliated institutions, and (3) cases concerning religious activities in public school.
1) Cases Unconnected to Financial Aid or Education
• Generally, a law favoring or burdening religion or a specific religious group will be invalid, but a law favoring or burdening public at large that happens to include religions group will be upheld
i.e., water, power, fire man service, and other public services that are available to public at large, can be available to religious group without a fear of excessive entanglement
i.e., there is excessive govt entanglement if a statute gives a church-affiliated schools the power to veto or grant nearby liquor licenses ( unconstitutional as a establishment violation
• MBE Tip: state legislature can employ a Chaplin, being each legislative day with a prayer but judiciary branch, and state courts cannot begin a daily court with a prayer. The reason is based on the “history of legislative prayer in America”
• The state may not force employers to gratn all employees an absolute right to refrain from working on their Sabbath, since the primary effect of such a law is to advance religion. However, a state may require employers to make reasonable effort to accommodate employee religious practices.
• Holiday Displays
Generally, Displays that merely celebrate the holiday season without favoring one religion over another upheld. The government cannot permit the type of display, which a reasonable observer would conclude constitutes an endorsement of religion. The context surrounding the display is a key factor in determining its validity. A nativity scene surrounded by two plastic reindeer, a Santa Claus, and a “Season’s Greetings” banner, taken as a whole, celebrated the holiday season and does not violate the establishment clause.
i.e., a display of only a crèche (but no other symbols nearby such as “Season’s greetings” banner, or Chanukah menorah) prominently displayed by a private religious group in the county courthouse violated the establishment clause
i.e., placing a cross in a state owned park immediately in front of the State Capitol does not violate the establishment clause b/c there was no endorsement of religion since the park had long been used by a variety of group to conduct expressive activities (look at the context of the place)
i.e.,
- if the government maintains a holiday Christmastime display that does not appear to endorse religion, the display will survive review under the Lemon test. If a government’s holiday display includes religious symbols (such as nativity scene or menorah) as well as other holiday decorations (such as Christmas tree or Santa Clause, etc), such displays are upheld since 1) they have a secular purpose since historically govt has recognized celebrating holidays which is a non-religious purpose, 2) has a primary non-religious effect since such symbols do not endorse religion per se, and 3) such displays do not create excessive govt entanglement
- if the display included only the religious symbols (such as only a nativity scene), it will violate the establishment clause b/c it has a religious effect and it endorses religion.
2) Cases Involving Financial Benefit to Church-Related Institutions
i.e., when govt financial aid is eventually going to a religiously affiliated grade or high school, or religious college or hospital
Recipient-Based Aid
The govt may give aid in the form of financial assistance to a defined class of persons as long as the class is defined without reference to religion or religious criteria. Such program is valid even if most of the people receiving the aid use it to attend a religiously affiliated school.
i.e., court upheld a program that made education subsidy payments directly to a blind or disabled student even though a student used his aid to study at Christian college for the purpose of becoming a pastor or missionary. The class of person who received the aid was defined without reference to religious criteria; only an incidental benefit would go to the religiously affiliated college or vocational training institution. ( upheld.
i.e., establishment clause does not prevent a public school district from paying for a sign language interpreter fro a deaf student at a religious high school under a religiously neutral program of aid to all handicapped school children in both public and private schools
i.e., court upheld a program that provided tuition vouchers to parents of poor children in kinder garden through the eighth grade which could be used to pay for attending public or private schools of their parent’s choice, even though most of them chose to attend religiously affiliated schools. The program was part of a larger program that also created publicly funded magnet schools and community schools that were independent from the local school district ( the program did not have the purpose or effect of advancing religion. Its purpose was secular – to provide educational assistance to poor children in a failing public school system. Its primary effect was to provide poor children with fund to attend other school.
Aid to Colleges, Hospitals, etc
Govt grant of aid to the secular activity of a religiously affiliated hospital or college (such as grant to build a new hospital lab, or classroom building) will be upheld if the govt program requires that the aid be used for a nonreligious purposes and that the recipient so agrees in good faith.
i.e., the Adolescent Family Life Act – which provides for grant of govt funds to a variety of public and private (including religiously affiliated) agencies to provide counseling and educational services to young people regarding sexual activity – is upheld. The Act has a secular purpose namely, dealing with problem of teenage pregnancy. The act does not on its face advance religion b/c a religiously affiliated organization could contractually be required to use the funds for nonreligious counseling. And the act does not give rise to excessive entanglement b/c there is no reason to assume that a significant percentage of the funds would be granted to pervasively sectarian institution.
Tax Exemption: If tax exemption is available to secular as well as religious organizations, it is valid. on the other hand if a tax exemption is available only for religious organizations or religious activities, it violates the establishment clause.
i.e., an exemption from the sales and use tax fro religious magazines for books but no other publication violates the establishment clause
Tax Deduction: tax deductions given to reimburse tuition expense only for parents of children in religious schools in invalid. But, if a tax deduction is given to all parents based on actual expenditures for children attending any public, private, or religious school, it will be upheld.
Property Tax Exemption: property tax exemption for religious institutions is valid (even if only religious organization are exempted from property tax). Neither the purpose nor effects of property tax exempt is regarded as secular, since in property tax exemptions, the “govt does not transfer part of its revenue to churches but merely abstains from demanding the church support the state”.
3) Aid to Religiously Affiliated Grade Schools or High Schools
Aid to religious grade schools in usually found to have a secular purpose, but may fail the other two parts of the test. I.e., if the aid significantly improves the ability of students to attend such schools, it will be deemed to have a primary effect that advances religion. And if the program has detailed administrative regulation to prevent the effect of advancing religion, the law may still be stricken for excessive government entanglement.
i.e., Aid Upheld:
i.e., providing textbook to all students including students that attend religious grade school is upheld. But state may not loan textbooks to students attending schools that discriminate on the basis of race, since this would violate 14th amendment EP clause
i.e., lending religiously neutral instructional materials such as library books, computers, etc to parochial schools as well as public and private schools are upheld so long as the program does not define recipients by reference to religion. Challenger failed to prove that the neutral aid was used for religious indoctrination.
i.e., providing transportation to and from school to all students is upheld
i.e., reimbursing private schools for expenses of compiling state required data, such as student attendance records or administering and grading standard test is upheld
i.e., provide govt employees to perform diagnostic test for health and learning problems at private schools is upheld
i.e., providing auxiliary service (e.g., remedial education, guidance, or job counseling) to all disadvantage children at their school, including children at parochial school is upheld
i.e., Aid Invalid
struck down either b/c they have primary effect that advances religion or they involve excessive entanglement between govt and religion:
i.e., programs paying for field trip transportation for private school students (goes too far, primary effect aids religion) are invalid as establishment clause violation
i.e., Programs paying a portion of private school teacher’s salaries (for their secular classes), are invalid as establishment violation since the primary effect would be advancing religion and a system to ensure that the money / teacher not be used for religious purposes would involve excessive entanglements
i.e., programs reimbursing private schools for writing achievement tests is invalid b/c this would have the primary effect of advancing religion since the schools could write tests advancing their religious mission
3) Cases Involving Religious activities in Public Schools
School sponsored religious activities are invalid since they violate the establishment clause. However, if a public school allows member of the public and private organizations to use school property when classes are not in session, and thereby change the status of the place from non-public forum to a designated public forum, it cannot deny a religious organization permission to use the property for meetings merely because religious topics will be discussed. Such accommodation does not violate the establishment clause because the primary purpose of such programs is secular (to accommodate all interests), people are not likely to assume that the govt endorses the religious ideas discussed, and there is no excessive govt entanglement, at least where the meetings are not run by school personnel.
i.e., Prayer and Bible Reading
Prayer and Bible readings in school are invalid as establishments of religion. It does not matter whether participation is voluntary or involuntary, and neither does it matter that the prayer period is designated as a period of silent prayer or meditation.
- This rule extends to prohibit public school officials from having clerics give invocation and benediction prayers at graduation ceremonies.
- Similarly, a school policy authorizing students to elect whether to have a student invocation before a game, or to select a student to deliver it, and to decide its content violates the establishment clause.
i.e., Posting Ten Commandments in Classroom plainly serves a religious purpose and is invalid despite the legislature’s statement that is was for a secular purpose.
i.e., programs in which regular classes end an hour early one day a week and religious instruction is given in public school classroom are invalid even if it was given at the request of the students
- If a public school allows members of the public and private organization to use school property when classes are not in session, it cannot deny a religious organization permission to use the property for meetings merely because religious topics will be discussed. Such an “equal access rule” does not violate the establishment clause because the primary purpose of such programs is secular (to accommodate all interests), people are not likely to assume that the govt endorses the religious ideas discussed, and there is no excessive govt entanglement, at least where the meetings are not run by school personnel.
- A government statue or regulation that modifies a public school curriculum will violate the establishment clause if it fails the secular purpose test, primary effect test, or excessive govt entanglement test
Ie., a state statute that prohibited the teaching of human biological evaluation in the state’s public schools was held to violate the establishment clause because the legislature had a religious purpose for enacting the statute. Similarly, the court invalidated a state statute that prohibited instruction regarding “evolution science” (the theory of human biological evolution) in the public schools unless that instruction was accompanied by instruction regarding “creation science” because the court found that the legislature enacted this statue for the purpose of promoting religion
|Establishment Clause Cases |
|Valid |Invalid |
| |
|Non Financial Aid and Education Cases |
|Legislature’s employment of chaplain |Delegation of zoning power to religious organization |
|Granting religious organizations exemptions from employment |Requirement that all employers grant all workers their Sabbath day off.|
|discrimination laws where contrary to the organization’s belief | |
|Christmastime display that includes religious symbols and |Christmastime display of only religious symbols (e.g., nativity scene |
|non-religious symbols (e.g., nativity scene along with a Christmas |or menorah only). |
|tree or Santa) | |
| |
|Recipient-Based Aid |
|Tax credits for parents of all students for educational expenses |Tax credits only to parents of private school students for educational |
| |expenses |
|Tuition vouchers for poor students that can be used at participating| |
|public and private schools | |
| |
|Aid to Religious Grade and High Schools |
|Transportation to and from school for all students |Transportation for field trips for all students. |
|Reimbursement to private schools compiling state-required data or |Reimbursement to private schools for writing achievement tests. |
|administering standardized achievement tests. | |
|Providing govt employees to test private school students for heath |Providing private schools with teachers, or money to pay teachers, of |
|or learning problems and to provide on-site auxiliary services, such|secular classes |
|as remedial education, guidance, or job counseling. | |
|Exemption from property tax for religious, charitable, and |Tax exemption only for religious associations or activities |
|educational property | |
|Providing all students with state-approved textbooks or lending | |
|religiously neutral instructional material (e.g., computers) to | |
|private as well as public schools. | |
| |
|Religious Activities in Public Schools |
|Ending Class early to allow students to attend off-school religious |Ending class early to give voluntary in-school religious classes |
|classes | |
|Allowing religious students groups to meet in unused classrooms as |Prayer, Bible reading, or posting Ten Commandments in classrooms or at |
|any other students group |school football game, a moment of silent prayer |
| |Requiring that “creation science” be taught |
April 6, 2006
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If a law limits a fundamental right, strict scrutiny will be applied. To be upheld under SS test, the government has the burden to prove that regulation is necessary to achieve a compelling governmental purpose and the means used are narrowly tailored to achieve its objective (i.e., there is no lesser restrictive alternative means available). Fundamental rights include 1-Right to travel, 2-Privacy rights, 3-Voting, and 4- First Amendment rights. In all other cases, the mere rational basis standard is applied, and the law is generally presumed to be valid unless the challenger can show that it is not rationally related to any conceivable legitimate governmental purpose.
The Privacy Rights
While all intentional governmental deprivations of life, liberty, or property require fair process, what constitutes fair process in terms of timing, type, extent and scope of the hearing varies according to the circumstances of the deprivation. Generally type and extent of the required procedure is determined by balancing the following factors as set forth in Mathews v Eldridge:
1. The importance of the interest to the individual
2. The risk of an erroneous deprivation as the result of the procedure used
3. The magnitude of government interest in fiscal and administrative efficiency (cost),
Never forget, your first page and last page must be a masterpiece. Con law exam is all about arguing the facts for both sides, never do abstract law.
Generally, if the gov regulation is aimed directly at the content of speech (subject matter or viewpoint), such content based restrictions are presumed unconstitutional unless 1) the regulation is necessary to serve a compelling state interest and that the means used are narrowly tailored to achieve that interest (i.e., there must be no less restrictive alternative available), or 2) that the regulation falls within one of the unprotected categories of speech. On the other hand, content neutral restrictions (Time, Place, Manner) burdening speech are generally valid if the regulation 1) furthers a significant gov interest 2) is narrowly tailored, and that 3) ample alternative channels of communication are made available. However, the extent to which gov may regulate speech related conduct depends on whether the forum involved is a public forum, a designated public forum or a nonpublic forum. Lastly, if the conduct itself is the message or is undertaken to communicate an idea, the court will uphold a regulation of symbolic conduct if 1) the regulation is within the constitutional power of the gov, 2) it furthers an important gov interest which is 3) unrelated to the suppression of speech, and 4) the burden on speech is no greater than necessary.
1) Overbroad Doctrine / Doctrine of Substantial overbreadth: A regulation is overbroad and thus unconstitutional on its face if it regulates substantially more speech than the constitution allows to be regulated
i.e., City ordinance prohibiting all live entertainment. i.e., A law that prohibited speech that in any manner interrupted a public officer. i.e., A law banning all door to door solicitation (but a law requiring solicitors to obtain homeowner’s consent to solicit is valid). i.e., city ordinance prohibiting homeowners from displaying any sign on their property except “residence identification” or for sale signs; overbroad doctrine does not apply to commercial speech
2) Vagueness Doctrine: A regulation is vague and thus unconstitutional on its face if it fails to give reasonable notice of what is prohibited. (If it is unclear what speech is regulated, people might refrain from speech that is permissible for fear that they will be violating the law) ( vague b/c BZ: there is “no ascertainable standard for defining the conduct or guilt”
i.e., prohibition against “lewd” speech is vague. i.e., regulation that prohibits persons from wandering or straying around from place to place without any lawful purpose i.e., a statute the prohibits atty from making statements that would have a substantial likelihood of prejudicing a trial i.e., to respect for values i.e., fighting words are always vague – words directed at anther that are likely to cause a fighting response i.e., using general terms is vague (what is criminalized or not may also trigger Due Process question) Exam Tip: the right answer choices about laws prohibiting fighting words is always going to be the one that says the law is unconstitutionally vague and overbroad., i.e., the same regulation will violate both doctrines.
3) Prior Restraints (i.e., injunction/ license permit): Gov actions restricting free speech in advance of publication is generally presumed unconstitutional unless it is 1) content based neutral, 2) reasonable w/ respect to TPM, 3) narrowly tailored and burdens no more speech than necessary to serve a significant (important) gov interest, and 4) leaves ample alternative challenges of communication open 5) does not give the official an unfettered discretion as to whether grant or deny the permit/injunction. Additionally such statues must provide procedural safeguards such as prompt determination of the request & judicial review.
i.e., of invalid regulations b/c of prior restraint: licensing permits, injunctions; “gag” order barring the media from pretrial publicity: unconstitutional
i.e., of valid regulations: where national security interests are compelling, or the regulation of obscene films where procedural safeguards are afforded
4) Official’s Unfettered Discretion: A regulation cannot give officials broad discretion over speech. Where a licensing official has unfettered discretion as to whether to confer or deny permit, such broad discretion over speech violates the 1st amend free exercise of speech. There must be defined standard for applying the law. The fear is that the officials will use their discretionary power to prohibit dissemination of ideas that they do not agree with. i.e., an ordinance vesting officials with power to grant or deny parade permits based on their judgment as to the effect of the parade on community welfare or morals is unconstitutional on its face. i.e., a statute prohibiting excessive loud sound trucks is valid, but an ordinance giving the officials discretion as to who may use sound truck is invalid
Constitutional restrictions applies to defamatory speech where the plaintiff is either public official or public figure, or where the defamatory statement involves a matter of public concern. In these instances, the ( must prove not only the state law requirement of defamation, but also falsity of the statement and fault. Falsity requires the ( to proof by clear and convincing evidence that the statement was false and that when viewed by a reasonable person, it must be a statement of fact rather than opinion. As to fault, public officials and public figures must prove that the defamatory words relating to his or her official conduct was made with actual malice, whereas private person plaintiffs suing on a matter of public concern must at lest show that the defendant was negligent. Lastly, if the private person is suing on a matter that is not a public concern, the plaintiff is only required to show that the defamatory statement was made.
Commercial speech is the proposal of commercial transaction. As a general rule, commercial speech is afforded some 1st amendment protection. Regulation of commercial speech is valid if it 1) concerns a lawful activity and is not misleading or fraudulent, 2) serves a “substantial” government interest, 3) “directly advance” the asserted interest, and 4) is narrowly tailored to serve the substantial interest. This last part of the test does not require that the least restrictive means be used but rather there must be a reasonable fit (reasonable tailoring) between the means and ends chosen. (Central Hudson Gas v. Public Service Commission)
Facial Attacks
Obscenity is not protected speech. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:
1) Appeals to the prurient interest in sex, using a community standard
2) Is patently offensive by applying contemporary community standard (defined by state law)
3) Lacks serious redeeming literary, artistic, political, or scientific (LAPS) value based on national standard
The government has power to regulate the conduct associated with speech and assembly, however the breadth of this power depends on whether the forum involved is a public forum, designated public forum (sometimes called a limited public forum), or a non-public forum. The gov may regulate content neutral speech in public and designated public forums if the regulation is 1) reasonable with respect to time, place and manner, 2) it is content neutral; 3) {IS}: narrowly tailored to serve a significant gov interest; and 4) leaves open ample alternative channels of communication. On the other hand, if the forum involved is a non-public forum, speech and assembly can be more broadly regulated and such regulations will be upheld so long as they are 1) view point neutral and 2) reasonably related to a legitimate government purpose. Here, the first question is whether “X” is a public forum, limited public forum, or non-public form.
Public Forum: Public property that has traditionally and historically been open to speech-related activities such as streets, sidewalks, and public parks, is called a public forum. Designated Public Forum: Government properties that have not historically been open to speech but the gov has intentionally thrown open on permanent or limited basis by practice or policy (such as school rooms that are open for after school use by social, civic, or recreation group) is called designated or limited public forum and the same restrictions that apply to traditional public forum applies to limited or designated public forum.
Government properties that the government constitutionally can and does close to speech such as military bases, prison and jail, sidewalks of postal office, airports, gov properties like buses, mailbox, phone poles, etc, candidate debates sponsored by gov owned station) are non-public forum.
Non-public forms:
1- Military bases, public schools, jail houses (for the sake of security)
2- Advertising space on city buses, posting signs on public properties including sidewalks, crosswalks, street lamp posts, fire hydrants, and phone poles
( Note: posting signs on sidewalks is treated differently than protesting or marching through sidewalks. For posting signs purposes, the sidewalk is a non-public forum since sidewalks are not traditionally held as a place to post signs, but for protesting purposes sidewalks are traditionally been held open to pubic for such activity. Thus posting signs on sidewalks can be broadly regulated and such regulations will be upheld so long as they are viewpoint neutral and rationally related to gov legitimate purpose such as keeping the city in a clean and desirable condition.
3- Gov workplaces, court building and its grounds
4- Sidewalks on post office (Exam Tip: sidewalks are generally public forum, but sidewalks on post office property are an nonpublic forum.)
5- Airports are non-public forums ( the gov can prohibit the solicitation of money is airport (subject matter regulation and not view point regulation) & RBR: to prevent the risk of fraud to hurrying passengers. However, the gov cannot prohibit the distribution of literature. (airport corridors & shopping areas outside the passenger security zone & are public forum for the purposes of leaf-letting)
6- Candidate debates sponsored by gov owned TV station.
i.e., Exam: state of Arkansas owns a TV station. It invited a Democrat and a Republican, but not the independent candidate. B/c TV station is owned by gov and is not open to public, the candidate debate on TV is not a public forum, and ( the action is upheld so long as it is viewpoint neutral and meets RBR. Even inviting some parties and not others is a form of subject matter regulation; nonetheless since it was viewpoint neutral, it was upheld.
7- Mailboxes; a letter/mailbox at a business or residence is not a public forum. ( the gov may prohibit the placing of unstamped items in post boxes so long as it is view point neutral and reasonably related to legitimate gov purpose (since prohibiting placing an unstamped items in post boxes promotes efficient mail services, such regulations are valid.)
Prior restraints prevent speech before it occurs. Because licensing requirement (/or permit requirement /or injunction / or gag order/ or temporary restraining order) prevents speech before it occurs, it is a form of prior restraint. As a general rule, the gov cannot suppress or restrain speech in advance of its publication or utterance and generally there is a strong presumption on unconstitutionality of prior restraint of expression. If the licensing requirement (or injunction) is content based (i.e., gag orders, TROs), the gov has a heavy burden of showing that the licensing requirement (or injunction) is 1-necessary to achieve a compelling state interest and that 2-the there is no less restrictive alternative means available to achieve that purpose. On the other hand, if the licensing permit (or injunction) is content neutral, it may be upheld as the means of regulating time, place, and manner of speech if it is 1) reasonable with respect to time, place and manner, 2) it is narrowly tailored and burdens no more speech than necessary to serve a significant (important) gov interest, and 3) leaves open ample alternative channeled of communication 4) does not give the official an unfettered discretion as to whether grant or deny the permit/injunction. Additionally the Court has held that no system of prior restraint will be upheld unless it provides procedural safeguards such as prompt determination of request for injunction/license and prompt and final judicial review.
Speech includes not only verbal communication, but also conduct that is undertaken to communicate an idea. Symbolic speech is constitutionally protected speech and gov may not regulate such conduct unless 1) the regulation is within the constitutional power of the gov, 2) it furthers an important (substantial) gov interest, 3) that is unrelated to suppression of the speech, and 4) the impact on communication is no greater than necessary to achieve the gov’s purpose (in other word, If the law is directed at conduct and not content and the conduct is undertaken to convey a message, the conduct is protected as symbolic speech ( gov cannot regulate it unless meets O’Brien’s IS)
Clear & Present danger: Speech may be suppressed if under the circumstances there is a “clear and present” danger to which it would bring about the substantive evil that congress has sought to prevent. The modern test is that (Brandenburg) gov may prohibit speech if the speech is intended to incite imminent lawlessness and that there is a substantial likelihood that the speech would incite or produce such action
Fighting Words States are free to ban the use of “fighting words.” Fighting words are those abusive words that are likely to incite immediate breach of peace or physical retaliation when addressed to an average person. (Chaplinsky). Words that are merely annoying or offensive or words that are not directed to the person of hearer are not fighting word (also struck down as vague/overbroad)
Obscenity: Obscenity is not protected speech. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person: 1) appeals to the prurient interest in sex, using a community standard 2) is patently offensive by applying contemporary community standard (defined by state law), 3) lacks serious literary, artistic, political, or scientific value based on national standard
Commercial Speech: Commercial speech is the proposal of commercial transaction. As a general rule, commercial speech is afforded some 1st amendment protection. Regulation of commercial speech is valid if it 1) concerns a lawful activity and is not misleading or fraudulent, 2) serves a “substantial” government interest, 3) “directly advance” the asserted interest, and 4) is narrowly tailored to serve the substantial interest. This last part of the test does not require that the least restrictive means be used but rather there must be a reasonable fit (reasonable tailoring) between the means and ends chosen. (Hudson)
Defamation: Constitutional restrictions apply to defamatory speech where ( is either public official or public figure, or where the defamatory statement involves a matter of public concern. In these instances, the ( must prove not only the state law requirement of defamation, but also falsity of the statement and fault. Fault requires proof of actual malice.
On the other hand, content neutral restrictions (Time, Place, Manner) burdening speech are generally valid if the regulation is
1) reasonable with respect to TPM,
2) content natural (subject matter & view point neutral & no unfettered discretion i.e., permits),
3) narrowly tailored to serve a significant gov int
4) leaves open ample alternative channels of com
Although the freedom of association is not explicitly mentioned in the constitution, it is implied from the rights that are explicitly noted. Pursuant to this freedom, the government may neither 1) prohibit expressive or politically unpopular groups nor 2) unduly burden a person’s right to belong to such group. The freedom to associate is subject to the closes scrutiny and therefore any infringements of this right must be justified by a compelling state interest, unrelated to suppression of ideas, and must be the least restrictive means of protecting that interest. Freedom of association does not protect the right to discriminate or exclude others unless it relates to 1) freedom of intimate association or 2) freedom of expressive association (i.e., no gays in Boy Scout Club)
Generally if a law or government program prefers one religion, or one religious sect, over others, strict scrutiny analysis will be applied and the law will be presumed unconstitutional as a “ Establishment Clause violation”. On the other hand, if the law or government program contains no religious or sect preference, the court will follow a 3-part test under Lemon v. Kurtzman. Under this test, the law is valid if it:
1) Has a secular purpose
2) Has a primary effect that neither advances nor inhibits religion &
3) Does not foster excessive government entanglement with religion
1) Doctrine of Substantial Overbreadth: A regulation is overbroad and thus unconstitutional on its face if it regulates substantially more speech than the constitution allows to be regulated
2) Vagueness Doctrine: A regulation is vague and thus unconstitutional on its face if it fails to give reasonable notice of what is prohibited. (If it is unclear what speech is regulated, people might refrain from speech that is permissible for fear that they will be violating the law)( vague b/c there is “no ascertainable standard for defining the conduct or guilt”
3) Prior Restraints (i.e., injunction/ license permit): Gov actions restricting free speech in advance of publication is generally presumed unconstitutional however, injunction/ permit may be upheld as a means of regulating time, place and manner of speech if is 1) content based neutral, 2) reasonable w respect to TPM, 3) it is narrowly tailored and burden no more speech than is necessary to serve a significant (important) gov interest, and 4) leaves open ample alternative challenges of communication, 5) does not give the official an unfettered discretion as to whether grant or deny the permit/injunction. Additionally such statues must provide procedural safeguards such as prompt determination of the request & judicial review.
4) Official’s Unfettered Discretion: A regulation cannot give officials broad discretion over speech. Where a licensing official has unfettered discretion as to whether to confer or deny permit, such broad discretion over speech violates the 1st amend free exercise of speech. There must be defined standard for applying the law. The fear is that the officials will use their discretionary power to prohibit dissemination of ideas that they do not agree with.
Public property that has historically and traditionally been open to speech-related activities i.e. streets, sidewalks, & public parks
gov properties that have not historically been open to speech but the gov has intentionally thrown open on permanent or limited basis by practice or policy i.e., school rooms that are open for after school use by social, civic, or recreation group. The same restrictions that apply to traditional P/F apply to limited P/F.
gov properties that the gov constitutionally can and does close to speech i.e., military bases, prison, sidewalks of postal office, airports, gov properties like buses, mailbox, phone poles, gov TV station, city hall (also called nonpublic limited forum)
Generally, if the gov regulation is aimed directly at the content of speech (subject matter or viewpoint), such content based restrictions are presumed unconstitutional unless
|1) SS: | 2) Unprotected speech |
|OR |that the regulation falls within |
|necessary to serve a |one of the unprotected categories |
|compelling state interest & |of speech |
|narrowly tailored | |
| | |
When the forum involved is a non-public forum, speech and assembly can be more broadly regulated and generally such regulations will be upheld if they are
1) view point neutral
2) reasonably related to a legitimate gov purpose
The Free Exercise Clause prohibits government from punishing an individual by denying benefits or imposing burdens based on religious belief. On the other hand, conduct in furtherance of religious belief does not receive absolute protection and rather court will balance:
1- the severity of the burden (does the statute make the conduct illegal or simply more difficult to accomplish?),
2- the strength of the state interest (compelling, important, or significant) and
3- the alternative means available to accomplish that purpose
However, today, an important factor in determining the validity of regulation is to inquire whether government regulation intentionally or unintentionally interferes with religion. As a general rule, if the government purposefully interferes with particular conduct because it is dictated by religious belief, strict scrutiny analysis will be applied and the law will be presumed unconstitutional as a “Free Exercise Clause violation”. On the other hand, if the regulation is neutral and has general applicability, it will be presumed valid despite its incidental burden on religiously motivated conduct so long as it is rationally related to a legitimate gov purpose. (BZ: Regulations of religious conduct are presumed valid unless it can be shown that the law was motivated by desire to interfere with religion.
Speech includes not only verbal communication, but also conduct that is undertaken to communicate an idea. Symbolic speech is constitutionally protected speech and gov may not regulate such conduct unless 1) the regulation is within the constitutional power of the gov, 2) it furthers an important (substantial) gov interest, 3) that is unrelated to suppression of the speech, and 4) the impact on communication is no greater than necessary to achieve the gov’s purpose (in other word, [pic]- !0128AIJKVW\]bcfðìâØËÁ·Ÿ‘ƒuËkaTuGËGËGËh#N·5?CJ[?]OJQJ\?h#N·5?CJOJQJ\?h#N·CJOJQJh#N·CJOJQJh#N·5?>*[pic]CJOJQJ\?h#N·5?>*[pic]CJ[?]OJQJ\?h#N·5?>*[pic]CJOIf the law is directed speech plus conduct, the conduct is protected as symbolic speech ( gov cannot regulate it unless meets O’Brien’s IS)
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