MBE: Con Law

GEN: No advisory opinions; rather, actual cases and controversies.

• Ripeness: Actual harm or the immediate threat of harm.
• >>If situation requires the future occurrence of significant events, not yet ripe.

• Mootness: need actual, live controversy between the parties at ALL states of the litigation, including appeal.
• >> Not moot if:
• >>>> (1) Injury is capable of repetition to that plaintiff, yet b.c of nature, will evade review (pregnant women and abortion statutes).
• >>>> (2) Case brought as class action and issues concern at least one class member.
• >>>> (3) Case of collateral consequences -- ie. crim case, decided, sentenced served...but still threat of loss of civil rights (ie. back pay).
• >>>> (4) D has eased the harm but is free to return to his/her old ways.

NOTE: If asked about a reason to dismiss a case concerning a clearly unconstitutional statute, look for a reason that has nothing to do w/ the merits.

• GEN REQS:
• (1) P must suffer actual, concrete injury (personal harm) in fact (more than "ideological harm").
• (2) Causation -- gvt cause harm? traceable?
• (3) Redressability -- remedy?

• SPECIAL CASES: Standing of Orgs/Assns --
• Orgs, including unions, have standing to sue for injury to itself and/or the injuries of its members if:
• (1) Member(s) would have standing;
• (2) Member(s) injury is related to org's purpose; AND
• (3) No reason that would require participation of individual member (ie. damages). -- usually applies in injunction / declaratory relief cases.

• SPECIAL CASES: Raise Rights of Third Parties
• May raise the rights of someone else if:
• (1) Party has suffered some actual injury; AND
• (2) Special relationship b/wn party and the third person (usually both parties to the T/O) and there's a hindrance to the third party raising his own rights.
• >> IE. Doctor raises rights of patient re: abortion, or seller of alcohol raises right of males under 21 to buy beer.

• SPECIAL CASES: Taxpayers
• May sue to challenge your own tax liability, but no standing as TPs, to generally challenge how gov't spends money.
• NOTE: Narrow exception if law enacted under Congress' T&S powers (rather than exec/agency) and it exceeds specific const limit. But: if Congress acting under Property Power, no problem here.
• >> IE. Establishment Clause challenge to a T&S law.

• SCOTUS may review state court judgments IFF:
• (1) Case involves a matter of federal law;
• (2) It is a final judgment;
• (3) It is from the highest state court authorized to hear the case (exhaustion); AND
• (4) There is no adequate state grounds on which the state court decision is based.
• >> Adequate State Grounds: If no matter how the federal issue is decdied, the outcome will still be the same under the state rule.
• >> Indep State Grounds Rule: law does not depend on interp of federal law or incorp a federal standard.
• >>> If state constitution means precisely the same as the fed constitution, state law ground NOT independent of federal law ground.
• >>> If state court mixes up fed/state grounds, indep state grounds rule ≠ apply.

• Federal court will decline to hear a case challenging a state law if:
• (1) it involves a constitutional challenge to state law, but the meading of the state law is unclear/unsettled; OR
• (2) matter is already pending b/f state judicial/admin tribunals.

• PQ: Questions which are constitutionally committed to another branch of the government to decide, or beyond the competence/enforcement of the judicial branch.
• GEN: Courts will not decide PQs.

• STATES: Private party ≠ sue a state in federal court UNLESS:
• (1) State expressly consents to it; OR
• (2) Congress clearly says so to enforce 14A rights.
• NOTE: Defendant must be a state, not a local gvt. Must be for money paid out of state treasury or injunction / declaratory relief.

• STATE OFFICIALS: Can sue state officers in their individual capacities for damages, and may sue state officers for injunctions against future, unconstitutional action by the state.
• NOTE: P must be a private party, not another gvt.

• ADD'L: 11A ≠ bar P from suing state in state courts.
• BUT: State may raise sovereign immunity defense against such claims in their own courts.

GEN: Look for express grant of power in the Constitution. All powers not granted are reserved to the states under 10A.

GEN: Must be combined with another enumerated power.

• GEN: CC allows Congress to regulate almost anything -- rules, standards, rates, promote, prohibit, punish. Laws reg transportation, wages, hours, environment, manufacturing, mining, ect.
• >> Enables Congress to (1) regulate states directly with a CC hook; (2) threaten states with preemption; and (2) bribe strate with conditional spending legislation.
• >> Interstate Commerce Cats: (1) channels; (2) instrumentalities; and (3) activities w/ substantial effect.
• >> Interstate Activity Req: if econ/comm activity + has substantial effect (aggregate) on interstate commerce; OR not econ/comm activity, but has substantial effect above, then ok.

• >> CC allows Congress to regulate purely local and intrastate activities IF their cumulative effects substantially affect interstate commerce.
• >>> BUT: Congress ≠ tell states what laws to enact. Anti-commandeering - can't convert state offices into federal field offices.

Need 2/3 vote in each house of Congress to overcome an executive veto.

• GEN: Congress may use the Taxing Power to refulate and prohibit behavior so long as the statute is capable of raising some revenue, such as a prohibitive tax on gambling or goods made by child labor.
• NOTE: Don't care about motive. Valid so long as raises revenue.

• GEN: A court will enforce a spending condition against a state which has accepted federal funds if:
• (1) Reasonable related to a legitimate federal interest.
• (2) Clear quid pro quo -- grant of money conditional on state taking certain action.

NOTE: Chief source of federal gvt to bribe states.

• GEN: Outlaws slavery. Congress can act not just to eliminate slavery, but also to end all budges and incidents of it, such as racial discrimination in housing.
• KEY: No state action requirement.

• KEY: State action requirement.
• NOTE: Congress can pass legislation, but it must be directed at states and be to enforce, rather than define, 14A. Look for constitutional rights -- ie. access to courts.

GEN: Protects right to vote against any fed/state gvt racial discrimination, and it gives congress the power to enforce the amendment.

Delegation to administrative agencies is okay so long as Congress sets forth an intelligible priniciple to guide the exercise of such power.

If Congress delegates power to executive, it cannot reserve the right to veto particulat acts taken pursuant to that power. Instead, it mass pass new legislation (both houses) and signed by the President.

NOTE: While the exec can veto a bill, he cannot line-item veto a bill.

AND: If he does line-item veto congressmen DON'T have standing to bring a claim.

President appoints and the Senate offers advice/consent (approval).

Congress cannot appont exec officials.

President has the power not only to appoint but also to remove exec officials.

Congress can remove onlythrough impeachment. But: Congress may limit the President's power to remove (ie. require cause).

President: power to repel invasion and take emergency action to protect lives/property of the USA.

Congress: has the power to declare war + controls the purse strings for funding military operations.

• Treaties: require 2/3 Senate approval.
• >> If conflight between treaties and federal legislation: last in time prevails.
• >> Note: can be self-executing.
• Exec Agreements: No specific Congressional approval needed (acquiesence suff.) unless Congress explicitly disapproves.
• >> If conflight between exec agmts and federal legislation: fed law prevails.
• >> If conflict is between exec agmt and state law, exec agmt prevails.

• (1) Presumtive privilege not to disclose presidential communications.
• (2) Absolute presidential immunity from civil suits for damages for any presidential act, ie. wrongful firing of an employee.

CRIM IMMUNITY (Article 2, Section 4): "The President, VP and all civil officers of the US, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." These "civil officers" include federal judges and cabinet members, but do not include Senators and Representatives.

• Express: Congress says federa law displaces state law -- state law is preempted.
• Implied: State law is inconsistent with federal law (ie. impossible to comply with both, or where Congress has passed such extensive regulation in an area that it meant to "occupy the field" and leave no room for state regulation.

Disregard factors such as: state law passed first, fed regulation obscure where state law constitutional, fed law silly.

• GEN: States ≠ sue/regulate/tax federal gvt w/o consent.
• BUT: Fed gvt can s/r/t states.

• GEN: States may not discriminate against out of state citizens WRT commercial activities (employment, dealings in property, ect.) or the enjoyment of civil liberties.
• TEST: Discrimination invalid UNLESS state has (1) a substantial justification and (2) there are no less restrictive means.

EXCEPTIONS: States can require in-state residency for their own employees, charge out-of-staters more for recreational hunting licenses or tuition benefits, and may prefer their own citizens in giving state benefits (welfare. subsidies).

GEN: Where Congress has not acted, state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce.

• >> Discrimination: discrim against interstate commerce by:
• (1) favoring in-state commerce like forestalling competition or protecting local econ (per se invalid); or
• (2) enacting discrim laws for the purpose of promoting health/safety (presumptively invalid unless state shows that it had no reasonable, non-disrim means).
• NOTE: Only reg to survive the second type above was one preventing the importation of live bait fish, which may have carried parasites not present in state waters.

• >> Unreasonable Burdens: Even if not discrim, state law may still be invalud if it imposes an unreasonable burden on interstate commerce.
• NOTE: Balancing test -- actual effects on flow of commerce v. state interests.
• Laws producing marginal benefits while materially obstructing the movement of goods across state lines will be invalidated.

CONG. APPROVAL: State free to enact commercial legislation affecting commerce if Congress gives the states permission. But Congress may also speak and preempt state action.

• STATE AS MARKET PARTICIPANT: Whenever a state is acting as a buyer/seller of commodities/services, DCC DOESN'T apply to its actions. State may discriminate or burden interstate commerce. But -- if effects TOO downstream, then may lose MP exception.
• NOTE: Also applies to gvt subsidies: state does not violate NCC if it prefers its own citisens or companies w/ subsidies.

NOTE: A state tax on all, followed by a subsidy to in-state companies/manufacturers/ect. may violate DCC.

• STEP-BY-STEP:
• (1) Fed law in the picture? Preempt inconsistent state law OR authorize state law?
• (2) If no on-point federal law: state law discrim against interstate commerce?
• >> Invalid UNLESS: state pursuing legit health/safety objectives and has no alternative means, OR state granting subsidies or acting as market participant.
• (3) If non-discrim: law unreasonably burdensome -- disproportionately heavy cost on free flow of interstate goods?

• Discriminatory taxation: invalid.
• Non-discriminatory taxation: three reqs --
• (1) Non-discrim.
• (2) Object taxed must have a substantive nexus to the state -- and there must be an actual presence in the state (ie. sales taxes, property taxes).
• >> BUT: Cannot impose property taxes on goods merely passing through the state.
• >> AND: "Doing business taxes" (ie. license taxes) alowed only if seller is within the state -- ie. has property, stores or agents -- but not mere mail solicitation.
• (3) Tax must not be unreasonably burdensome.
• >> Must be proportioned to the company's business done in the state or benefits received in the state.

NOTE: Congress can preempt or authorize almost any state taxing law.

Congress may prohibit private discrimination through Commerce Clause regulation -- must consider cumulative effect.

GEN: Bill of Rights protections apply against the national government. 14A incorporates most of the Bill of Rights against state/local gvt through the DPC.

• REQ: State action.
• >> Private Conduct as State Action:
• (1) Public Function Doctrine -- private entity perform a gvt function traditionally and exclusively performed by gvt (ie. conducting elections), action deemed state action. (NOTE: Narrow).
• (2) Significant State Involvement w/ Private Conduct: when both working together as partners or joint venturers (each derive benefits from actions of the other), then state action may be found. Also applies when state actively, affirmatively and significantly commands, encourages, or approves of the private actor's challenged behavior.

NOTE: If a private club that receives a liquor license discriminates on the basis of race, SA.

• Contract Clause: states can't substantially impair preexisting contracts UNLESS:
• (1) the law serves an overriding public need and
• (2) the law is a reasonable and narrowly tailored means of meeting that need.

IE. Giving debtors the opportunity to recover their property after foreclosure...

• GEN: Applies only to criminal statutes, not civil ones.
• EPF IF:
• (1) Makes criminal today something done in the past;
• (2) Increases punishment after the crime is committed; OR
• (3) Reduces the evidence for conviction after the crime is committed.

NOTE: Sex offender statutes okay b/c even though they apply to ppl b/f and a/f legislation b/c considered civil punishment.

• If law limits the liberty of ALL: DP analysis.
• If law limits the liberty of a particular person or class: EPC analysis.

• KEY: Life, liberty or property interest.
• >> Includes good name and reputation.
• REQ: Notice (reasonably calculated to inform the person of the action against him) AND opportunity to be heard.

• TEST:
• (1) Intentional depravation?
• >> Liberty: physical liberty or loss of a legal right?
• >> Property: real/personal property? gvt benefit? gvt employment?
• >>>> Entitlement for gvt employment if requirement that individual can only be fired for cause.
• (2) Due Process:
• >> Balancing Test: weight --
• (a) Nature of private interest;
• (b) Whether current process is likely to lead to a mistake; AND
• (c) Gvt interest in challenging process (healthy/safety high, admin low).
• >> Hearing: usually comes BEFORE depravation, but can come after if the gvt can show a significant need to act first and answer questions later. IE. removal of police officer after charged w/ a felony.

GEN: Court filing fees need to be waived for indigents if they would deny a fundamental right -- divorce (waived - fund), but not bankruptcy (not waived - not fund).

• GEN: Taking must be for a public use. Requires just compensation (FMV).
• TAKINGS:
• (1) Physical invasion/occupation
• (2) Reg Taking: reg that restricts a property owner's use ≠ taking if (a) it reasonably advances a legitimate state interest AND (b) leaves an "economically viable use" for the property.
• >> Must be manifestly unfair or leave no economic viable use of the property.
• (3) Conditional Permits: no taking if rough proportionality b/wn the impact of the proposed development and the gvt condition.

• TEST: Gvt burden -- prove CGI and law is necessary to achieve it.
• CATS:
• (1) Race:
• >> Race-based affirmative action okay if order is commensurate w/ harm. Scope of remedy limited by scope of violation. Gvt agency mst have a compelling interest in specifically correcting their discrim. Past societal discrim insufficient.
• (2) Alienage:
• >> Standard Applied to Congressional Legislation: Rational basis
• >> Standard Applied to State/Local Gvt: Strict
• >>>> No reqs by states of US citizenship for private employment, right to own property, or gvt benefits.
• >>>>>> Exception: policymaking or policy implementing positions (incl. law enforcement). Non-citizens can also be barred from participating in the gvt process -- voting, holding office.
• ISSUE: Law is either intentionally discriminatory, or neutral on its fact but has the effect of discriminating when applied. In the latter case, must prove purposeful discrimination (motivating factor).

• STANDARD: Gvt burden -- law serves an IGI and is substantially related to that purpose.
• CATS:
• (1) Illegitimacy: can't usually discriminate on the basis of illegitimacy. In some areas o intestate succession, ok.
• (2) Gender: men and women can claim protection against unequal treatment. Laws include preferring men over women in matters of custody, alimony, prof/employ opps, receiving pub benefits, ect.
• >> Two Exceptions: (1) Bona Fide Affirmative Action (state making up for past discrim through a specific program, ie. military up and out); and (2) Real Differences (male only draft, statutory rape laws).

• STANDARD: Plaintiff -- law lacks a rational basis and is unrelated to any LGI. Presumed constitutional.
• >> Rare that laws fail test, but may do so if based on an irrational fear of a particular group.
• GEN: Practically all other classifications (ie. intelligence, wealth, age, mental disability).

TEST: SS

• Privacy:
• (1) Marriage and divorce
• (2) Contraception
• (3) Abortion: prior to viability, gvt may not impose any undue burden (substantial obstacle) on a woman's chice to terminate a pregnancy. After viability -- gvt can regulate abortions substantially and even prohibit abortions so long as to save the mother's life or protect her health interest.
• >> No undue burden to require informed written consent of the patient or a 24-hr waiting period, partental notification, ect.
• (4) Obscenity: right to possess (only) in the home.
• (5) Family relationships: right of parents to raise kids, right to maintain relationship w/ child.
• (6) Right to Refuse Medical Treatment: Right to refuse, but courts tend to apply a balancing test and weigh the state's reason for intervening against the individual's liberty interest.
• (7) Protection for Private Consensual Sexual Activity: substantial protection to adults.

TEST: SS

• Right to Vote: States have broad power to prescribe qualifications for voting.
• BUT: No substantial obstables on the right to vote.
• >> 50-day residency periods have been upheld, as have disqualifications of felons.

• One person, One Vote:
• (1) State/Local Elections: voting by districts must be apportioned to guarantee one person one vote, but in the interests of maintaining political subdivisionsare relatively compact districts, deviations of up to 16% have been permitted. State must prove the need for the deviation.
• (2) Federal Elections: HoR -- one person one vote. Deviations greater than 1% have been invalidated.

• Gerrymandering:
• (1) Racial: if drawn on race to dilute certain minorities, UNCONST.
• (2) Political: Race can be a factor if designed to enhance minority voting.

• GEN: Right to move from one state to another. aws preventing/burdening (severely) migration require strong gvt justification.
• TEST: Strict Scrutiny

• Durational Residency Reqs:
• >> If benefits are critically important (health care, welfare), then waiting periods (ie. one year) will be struck down.
• >> If benefits less important (lower tuition), or if the state has an especially strong interest (divorce laws), waiting periods of up one year OK.

>> Fixed/Permanent Distinctions Among Residents: unconst.

• GEN: Standing only if one can demonstrate a concrete stake in the outcome of a controversy and that the governmental action at issues impairs one's own rights.
• >> Can also assert third party rights if you suffer an injury and that injury adversely affects one's relationships with third parties.
• >> Immediate and direct THREAT of injury suffices.

• Vaugeness: failure to provide notice. Too ambiguous.
• Overbreadth: prohibits substantially more expression than is necessary even though const. on face.
• Prior Restraint: gvt bears a heavy burden to show a PR is necessary to prevent direct, immediate and irreparable harm.
• >> Look for: (1) IGI; (2) clear criteria for deciding; and (3) adequate procedural safeguards.

• GEN: Expression affected indirectly as a by-product of regulating other conduct.
• REQS:
• (1) Content Neutral -- must not be a licensing/permitted statute that lacks clear, precise and neutral standards or no standards at all (too much discretion).
• (2) Alternative Channels for Speech
• (3) Narrowly Tailored to Serve a Significant Gvt Interest

• BUT INJUNCTIONS:
• >> CBD -- necessary for CGI.
• >> CN -- no more speech than is necessary.

• GEN: Unless speech falls into a special category of unprotected expression, or gvt has a compelling need (SS), gvt cannot restrict the content of a person's speech.
• CAT EXCEPTIONS:
• (1) Incitement: gvt cannot control mere advocacy of lawless or violent behavior, but it may punish speech that (a) is directed at inciting AND (b) is in fact likely to incite imminent lawlessness.
• >> NOTE: Heckler's Veto not permitted. Obligation to first protect speaker.
• (2) Fighting Words: Words that have a direct tendency to cause acts of violence by the persons to whom, individually, the remarks are addressed. True threats not protected
• >> NOTE: Courts tend to strike down fighting words and hate speech statutes as unconstitutionally vague/overbroad.
• (3) Obscenity: Three requirements -- (a) avg persion applying contemporary community standards would find the word appeals to the prurient interest; (b) work depicts/describes in a patently offensive way sexual conduct specifically defined by applicable state law; (c) work taken as a whole lacks serious literary, artistic, political or scientific value.
• >> NOTE: Even if material ≠ obscene, gvt may limit the availability of it to minors and prohibit use of minors in creating it. Can also using zoning powers to prescribe where places of adult entertainment may operate (so long as gvt has a substantial interest in refulating and apple alternative opps remain available).
• (4) Commercial Speech: gvt may regulate and prohibit false, misleading, or deceitful advertising -- or that which proposes unlawful transactions. Any regulations beyond these categories must prove that the regulation advances a substantial gvt interest and is narrowly tailored.

GEN: if the restriction on 1A activities is severe, the regulation will be upheld only if it is NT to achieve a CGI.

Political contributions can be restricted WRT a political candidate, but not as to the amount spent on ballot reform.

• GEN: Government can fund private speech but it must typically be VPN.
• >> Req of mandatory financial support (ie. tax and use proceeds to express message) generally ok unless used to express views the taxpayers do not support.
• >>>> Mandatory university activity fees at public schools okay so long as VPN.
• EXCEPTION: Arts funds.

GEN: Press has same rights as everyone else. Press rights are the rights of the owner/publisher, not the readers.

• (1) Non-Public Forums: unless gvt has specifically dedicated NPFs to be fully opened to all 1A activities, the gvt may regulate access to this property under more lenient 1A standards.
• >> CBD: okay so long as VPN.
• >> TPM: Upheld so long as they are reasonable, leave open alternative channels of communication, and are narrowly tailored to serve a SGI.

• (2) Speech of Public Employees:
• GEN: Such employees (other than high level policy makers) cannot be hired/fired bc of speech.
• If employees speaking as citizens about matters of public concern, they can't be fired/hired unless speech disrupts operation of the office, undermines authority or destroys close working relationships.
• NOTE: Partisan political activity restrictions okay.

(3) Schools: Schools can prescribe course content. So long as there's a reasonable pedagogical purpose for a school's decisions, they don't violate students' 1A rights. Schools may also set standards of decency in discourse and prohibit speech which materially disrupts school activities or promotes drug use.

• GEN: Gvt cannot punish ppl b/c of beliefs or require them to profess beliefs. It may, however, inquire into the sincerity (but NOT the truth) of your beliefs.
• >> No Singling Out Religions: Laws cannot single at or prohibit or punish religious behavior b/c it is performed by a particular group unless CGI and law necessary.
• >> Gen Applicable Laws: laws that affect religious conduct but not aimed at such practices are valid and gvt not constitutionally required to provide exemptions. IE. court can ban peyote.
• >> Court Resolution of Church Disputes: avoided by courts.

GEN: Gvt is to remain neutral respecting religion and neither aid one religion, aid all religions, or prefer one over another.

• If preference for one religion: NT for CGI.
• If no preference for one religion: LEMON.

• LEMON: Law failing any part of this test can be found unconstitutional --
• (1) Secular purpose;
• (2) Primary effect: neither advances/inhibits;
• (3) Avoid excessive entanglement w/ religion.

• NOTE: Practices which are historically accepted or provide generally available gvt benefits = OK.
• BUT: When gvt awards relig ords benefits not gen available to the public (ie. veto power over liquor licenses), can create a problem.

• Aid to Schools: if law (ie. providing aid) has the primary effect of advancing religion, or causes excessive entanglement, can be struck down.
• IE. Aid to parents who opt to send their children to religious -- and only religious -- private schools.
• Gvt Sponsored Prayers/Displays:
• (1) Gvt sponsored religious exercises/prayers are prohibited, except at open legislative sessions.
• (2) Gvt ≠ sponsor religious displays on ub property if a reasonable observer would conclude, from the focus of the religious aspects, that the gvt is endorsing a religious message.

• (1) Congress ≠ delegate authority to administrative agencies.
• (2) Reserved for states under the 10th Amendment.
• (3) Congress has the power to legislate for gvt welfare.
• (4) Priv. and Immunities under Article 4.
• (5) Privileges and Immunities Clause under 14A.
• (6) Privilege -- not a right.
• (7) State statute unconstitutional b/c a burden on commerce.
• (8) Ex Post Facto applied to a non-crim statute.

GEN: TP does not have standing as a TP to challenge the way tax dollars are spent because his/her interest is too remote.

• EXCEPTION: Exception where --
• (1) Measure enacted under Congress' taxing/spending clause; AND
• (3) it exceeds some specific limitation on the power.
• >> Namely, the money spent is in violation of the Establishment Clause.