CONSTITUTIONAL LAW

• (1) Defined: Whether P is proper party to bring matter to court for adjudication. It has three components...
• (a) Injury - (i) P may only assert personally suffered injuries, (ii) P seeking injunctive or declaratory relief must show likelihood of future harm
• (b) Causation and Redressability - P must allege and prove that D caused the injury so that a favorable court decision is likely to redress the injury
• (c) No 3rd party standing (exceptions are close relationship, injured party unlikely to be able to assert rights, and organization can sue on behalf of members)
• (2) No generalized grievances: P must not be suing solely as a citizen/taxpayer (i.e. sue for how the gov't is spending tax money).

• (1) Defined: Federal cts can only hear a case when there is some real harm or an immediate threat of harm involved. Issue usually when individual wants declaratory judgment. Cts consider two factors to determine whether to dismiss...
• (a) Whether hardship will be suffered without preenforcement review
• (b) Fitness of issues and record for judicial review - Determine if there is any reason why ct should wait for actual violation (i.e. nothing to be gained from actual prosecution if purely a question of law).
• (2) No advisory opinions from the court!!!!

• (1) Defined: Generally, a real controversy must exist at all stages of review. If events after filing of lawsuit end P's injury, the case must be dismissed as moot.
• (2) There are 3 exceptions to the above
• (a) Wrongs capable of rejection but evading review: Injuries which are short by nature and which P may repeatedly suffer (i.e. roe v. wade, roe was preggers at filing but not at oral argument)
• (b) Voluntary cessation: If D voluntarily halts offending conduct, but is free to start again at anytime
• (c) Class action suits: Not moot as long as one member's claim is still viable.

• (1) Defined: Refers to allegation of constitutional violations that fed cts will not adjudicate. These are either issues constitutionally committed to another gov't branch or inherently incapable of judicial resolution.
• (2) There are 4 types of cases that are always dismissed....
• (a) Republican form of gov't clause: any challenge to this clause gets dismissed
• (b) Challenges to president's conduct of foreign policy (i.e. wars, treaties)
• (c) Challenges to impeachment and removal process
• (d) Challenges to partisan gerrymandering (i.e. manipulation of voting pool with census)

• (1) Original jurisdiction in all cases involving ambassadors, public ministers, counsuls, and those in which state is party (Fed lower cts can actually hear all but actions where state is suing another state).
• (2) Appellate jurisdiction
• (a) Writ of cert: SC has complete discretion to hear cases that come to it by writ. Needs 4 votes. Appeal of state ct cases limited to (i) constitutionality of fed statute, fed treaty or state statute, or (ii) state statute violated fed law.
• (b) 3- judge fed dist ct appeals go straight to SC.
• (3) Final judgment rule: S.Ct. can only hear cases after there is a final judgment made
• (4) If S ct. reviews state ct decision that rests on 2 grounds (one state/one fed) S Ct reversal of fed ground has to change result in case.

• (1) Claims barred - suits by private parties or foreign gov'ts against states....(1) in federal ct in which state is named a D, and (2) in st ct or federal agency.
• (2) Exceptions
• (a) Express waiver/consent
• (b) Congress removes immunity: States may be sued pursuant to fed laws adopted under section 5 of the 14th Amendment if congressional intent is clear
• (c) State officers may be sued for injunctive relief and money damages to be paid from their own pockets
• (3) Claims not barred include actions against local governments, actions by US gov't against states, actions by other states against states.

• (1) There is no general fed police power. States have this power, permitting them to do anything that is not unconstitutional. Federal gov't can only act under express or implied power. There are 4 exceptions though (MILD)
• (a) Military
• (b) Indian Reservations
• (c) Lands - federal lands
• (d) D.C.
• (2) Necessary and Proper Clause: Congress can make laws necessary and proper for exercising any power granted to any branch of fed gov't. Any means not prohibited by constitution OK. NPC standing alone cannot support fed law. Must work in conjunction w/another fed power (i.e. taxing)

• (1) Tax - Upheld if it bears some reasonable relationship to revenue production or of Congress has power to regulate activity taxed
• (2) Spending - Power to spend for common defense and general welfare (any public purpose)
• (a) Conditions on grants - Congress can regulate states by imposing explicit conditions on the grant of money to state or local gov'ts as long as the restrictions have some relevant fed interest involved and are expressly stated.
• (3) Commerce - Congress can regulate commerce btw/foreign gov'ts, Indian tribes and states in 3 situations...
• (a) channels of interstate commerce
• (b) instrumentalities of interstate commerce and persons or things in interstate commerce
• (c) activities having substantial effect on interstate commerce

• (1) Treaties - effective when ratified by 2/3 Senate
• (a) prevails over conflicting state law, of conflicting fed law, last in time prevails
• (2) Executive agreements - agreement w/foreign country effective when signed by pres and other leader
• (a) prevails over state laws, never prevails over fed laws
• (3) Commander-In-Chief - power to use troops in foreign countries
• (4) Appointment and Removal - He can appt officers, and remove high-level, purely exec officers
• (5) Impeachment - can be impeached for treason, bribery, other high crimes and misdemeanors.
• (a) Impeach requires majority from house
• (b) Removal requires 2/3 Senate vote
• (6) Immunity from civil damages while in office/keep presidential papers confidential
• (7) Power to pardon those accused of fed crimes (except those of impeachment)

• (1) Preemption Supremacy Clause makes constitution and laws/treaties pursuant to it the supreme law.
• (a) Express preemption if fed statute says fed law exclusive in a field
• (b) Implied preemption if (i) fed law and state law cannot be simultaneously complied with, if state law impedes achievement of fed objective, (iii) or if congress has clear intent to preempt state law
• (c) Intergovernmental immunity - states cannot tax fed gov't activity or substantially burden fed government.

• (1) DCC: State and local laws are unconstitutional if discriminates against, or places an undue burden on interstate commerce
• (2) PIC Art IV: No state may deny citizens of other states the privs and immuns it gives its own ppl.
• (3) PIC of 14th Amend: The right to travel
• (4) Analysis
• (a) STEP 1 - Does state law discriminate against out-of-staters
• (b) STEP 2 - If law does not discriminate, PIC does not apply. As for DCC, if law burdens interstates commerce, invalid if it exceeds its benefits (balancing test)
• (c) STEP 3 - If law does discriminate, it violates DCC if it burdens interstate commerce unless (i) it furthers important non-economic state interest and (ii) no reasonable non-discriminatory alternatives . Violates PIC only when (i) there is discrimination against out-of-staters and (ii) discrimination pertains to their ability to earn a living or civil liberties UNLESS necessary to achieve an important gov't purpose and no less discriminatory alternative exists.

• (1) Congress has complete power to authorize or forbid state tax that affects interstate commerce.
• (2) No discriminatory taxes that help in-state businesses at expense of out-of-staters
• (3) Nexus - Tax must apply to significant activity w/in state
• (4) State tax must be apportioned using rational formula

• (1) cts in one state must apply judgments of sister state
• (2) Requirements
• (a) ct that rendered judgment must have had PJ and SMJ
• (b) judgment on merits, AND
• (c) judgment is final

• (1) Step 1 - Is there Gov't action? Private conduct need not comply with constitution (i.e. private college can fire professor not in accordance with constitution but public university cannot). With that said, Congress can use statutes to regulate private activity or can use commerce clause where private conduct involves interstate commerce (restaurant).
• (a) Exceptions: (i) private entity performing task usually done by gov't, or (2) entanglement, constitution applies where gov't affirmatively authorizes, encourages or facilitates unconstitutional activity (i.e. racially discriminatory covenants btw/neighbors who block property sales bc/ of race).
• (2) Step 2 - Application of Bill of Rights. 14th Amendment incorporates most of Bill of Rights to limit state power (exceptions include right to bear arms.right to grand jury indictment in crim cases, right to jury trial in civil cases. In this instances, states do not have to comply with Bill of Rights).

• - Rational Basis Test Application: Regs that do not affect fundamental rights, involve suspect or quasi-suspect classifications (age, disability, poverty)
• - Rational Basis Standard: Will be upheld if rationally related to legitimate gov't purposes (valid unless arbitrary or irrational). Burden on challenger
• - Intermediate Scrutiny Application: Regs involving quasi-suspect classification (gender, illegit kids)
• - Intermediate Scrutiny Standard: Will be upheld if substantially related to important gov't interest and means are narrowly tailored to actual governmental objective (Burden on gov't)
• - Strict Scrutiny Application: Regs affecting fundamental rights(privacy) or suspect classifications(race)
• - Strict Scrutiny Standard: Upheld if necessary to achieve compelling gov't purpose and no less restrictive means available to achieve objective. (Burden on gov't).

• (1) A fair process (notice and hearing) is required when gov't intentionally deprives individual of life, liberty or property
• (2) Step 1 - Has there been a deprivation? Deprivation of liberty = person losing significant freedom of action provided by constitution/statute (institutionalization). Deprivation of property = existence of entitlement and entitlement is not fulfilled. Entitlement exists if there is a reasonable expectation to continue receipt of benefit under state/fed law. (i.e. welfare benefits, gov't employment).
• (3) Step 2 - What procedures are required? The standard is...(i) importance of interest to individual and value of procedural safeguard to interest (i.e. accuracy of fact-finding) against (ii) gov't interest in fiscal and administrative efficiency.

Before termination, must be notice and hearing

only post-termination hearing

Must have notice of charges and opportunity to explain

Notice and hearing before permanently terminated

Require instructions to jury and judicial review

Must be afforded due process notice of charges, rep of atty and neutral fact-finding

Must be preceded by notice and a hearing except in exigent circumstances (reason to believe owner will transfer/hide asset if given notice)

Prior notice and evidentiary hearing

Subsequent notice and hearing

prior evidentiary hearing

• (1) Whether gov't has adequate reason to deprive an individual of life, liberty, or property.
• (2) The two areas to consider are economic liberties and property
• (3) Substantive due process is at issue when liberty is being limited as it applies to all persons. If limits are to one person/class of persons, use Equal Protection

• (1) Rational basis test applied
• (2) Takings Clause - Gov't may not take private property for public use without just compensation
• (3) Step 1 - Is there a taking? Physical taking or Regulatory taking (gov't reg leaves no reasonable economically viable use of property. Must take ALL economic use)
• (4) Step 2 - Is public use requirement satisfied? If gov't action is rationally related to a legit public purpose (i.e. health/welfare/safety/etc...) then requirement met.
• (5) Step 3 - Is compensation paid? Measured by loss to owner no gain to taker (i.e. FMV is $10K but gov't sells land for $100K. The loss is $10K).

• (1) Clear strict scrutiny: Right to marry, right to procreate, right to custody, right to keep family together, right to control upbringing of kids, right to purchase and use contraceptives
• (2) Right to abortion: States may not prohibit them but may regulate them as long as regs don't create undue burden/substantial obstacle (i.e. requiring women to tell spouse, barring partial birth abortion)
• (3) Right to gay sex - No standard articulated
• (4) Right to refuse med treatment - competent adults can but family members cannot.
• (5) No right to physician assisted suicide

• (1) Step 1 - What classification (determine how gov't is drawing distinction)
• (2) Step 2 - What level of scrutiny should be applied?
• (3) Step 3 - Does the law meet the level of scrutiny
• (4) Strict scrutiny - race, national origin (discrim impact and effect if facially neutral), right to travel, right to vote (poll tax and gerrymandering not age/residency/citizenship).
• (5) Intermediate scrutiny - gender (discrim impact and effect if facially neutral)
• (6) Rational basis test - most alienage classifications, discrim against non-marital kids, age, disability, sexual orientation, wealth

• (1) Strict Scrutiny - "Content based" either subject matter restrictions based on content of speech or viewpoint restriction where application of law depends on ideology of message (i.e. no protesting outside foreign embassy if likely to embarrass)
• (2) Intermediate scrutiny - "Content neutral": Must advance important interests unrelated to suppression of speech, must not burden substantially more speech than necessary to further those interests