Con Law II

  1. Lemon Test - No Establishment Clause
    • 1. perdominant purpose religious?
    • 2. primary effect to advance religion?
    • 3. excessive entanglement?
  2. critique of Lemon Test
    • 1. ambiguity regarding whether secular purpose must be exclusive, predominant, or merely present
    • 2. difficulty knowing when impermissible religious purpose exists: measured by intrinsically religious nature of activity? subjective motivations?
    • 3. difficulty in defining "primary effect" - how much advancement is too much?
  3. Endorsement Test - No Establishment Clause
    • stated 2 ways:
    • 1. gov endorses religion when it convesy or attempts to convey a message that religion or a particular religious belief is favored or preferred

    2. gov endorses religion when it sends a message to nonadherents that they are political outsiders
  4. critique of endorsement test (no establishment clause)
    • 1. ambiguity in term "endorsement." - does this mean acknowledgement or approval?
    • 2. susceptible to observer bias
    • 3. provision has been transformed from protector of liberty to guarantor of equality focusing on political rather than religious experience of religious minorities
    • 4. leaps from real disabilities to felt disabilities - finding endorsement when someone merely is offended or feels excluded
  5. Coercion Test (no establishment clause)
    direct coercion - coercion of religioius orthodoxy or financial support by force of law and threat of penalty for noncompliance

    indirect coercion - coercion of religious orthodoxy or financial support that is not backed by any legal sanction for noncomplaince, but rather depends upon other circumstances, such as social pressure, to force compliance
  6. critque of coercion test (no establishment clause)
    no principled link b/t coercion and religious proselytization or indoctrination...coercion test doesn't add sum up all establishment clause concerns
  7. History and Tradition Test (no establishment clause)
    whether the practice is deeply embedded in the history and tradition of this country
  8. theory of coercion (religion)
    gove establishes religion when it coerces persons to participate in or support any religion or its exercise
  9. theory of endorsement (religion)
    gov establishes religion when it conveys a message of endorsement of religion rather than a message of pluralism and freedom to choose one's own beliefs
  10. how lemon test defines the no establishment inquiry (religion)
    in terms of strict neutrality toward religion
  11. twin protections of religion clause
    • 1. free exercise
    • 2. no establishment
  12. four views of the original meaning of Religion Clause
    • 1. federalism
    • 2. strict separationism
    • 3. nonpreferentialism
    • 4. protection of individual religious conscious
  13. federalism view - religion clause
    no establishment provision enacted to protect existing state establishments of religion from federal interference
  14. strict separationism view - religion clause
    the secular state - no establishment provision requires complete separation of church and state, state must be agnostic on matters of religion
  15. nonpreferentialism view - religion clause
    no establishment provision permits gov aid to religion, so long as no particular religion is preferred
  16. protection of individual religious conscious view - religion clause
    twin protections for religious freedom - no establishment provision forbids state from imposing its preferred religion (you can't make me) and free exercise provision forbids states from interfering with individual's preferred religion (you can't stop me)

    aim of religion clause is to reduce, as much as possible, gov influence over religious decisionmaking and commitment

    protection of religious conscious arose from unique character and claims of religion: (1) priority rationale, (2) authenticity rationale, and (3) competency rationale
  17. 4 tests for determining what constitues an establishment of religion
    • 1. lemon test
    • 2. endorsement test
    • 3. coercion test
    • 4. history and tradition test
  18. factors often decisive in Lemon Test
    • 1. no aid that could be used for or diverted to religious purposes
    • 2. no direct funding, especially of pervasively sectarian institutions
    • 3. equality/nondiscrimination in provision of benefits
  19. 2 principles of the current approach to religion clause
    neutrality - do benefits flow to nonreligious as well as religious groups as defined by secular, nondiscriminatory criteria?

    private choice - does aid reach religious groups as a result of independent private choices of individual recipients (i.e. - no state action)?
  20. free speech expressive conduct analysis
    • 1. does the activity have a significant expressive element?
    • 2. what is the governmental purpose in enacting the regulation?
    • 3. is the purpose related to the speech or conduct component of activity?
    • a. speech - apply traditional tests for regulating speech
    • i. protected speech and content neutral - intermediate scrutiny
    • ii. protected speech and not content neutral - strict scrutiny
  21. strict scrutiny
    • 1. compelling gov interest?
    • 2. no less restrictive means?
  22. intermediate scrutiny
    • 1. significant gov interest?
    • 2. narrowly tailored?
    • 3. leaves open ample alternative channels?
  23. minimal scrutiny
    • 1. reasonable?
    • 2. viewpoint neutral?
  24. private speech on public property strict scrutiny analysis
    • 1. traditional public forum (i.e. - public streets, parks, etc)? - yes
    • 2. standardless licensing scheme? - no
    • 3. regulation ban ALL speech or ban access for entire MEDIUM? - yes
    • 4. content neutral? - no

    if all answers above are same and regulation is content neutral apply intermediate scrutiny
  25. factors for determining if public property has become a designated public forum (has gov intentionally opened property for private expression)
    • 1. gov policy and/or practice
    • 2. custom and history
    • 3. compatability of property with expressive activity

    public forum isn't created by gov inaction, acquiesnece, or selective access...must intend to make property generally available to class of speakers
  26. level of scrutiny for private speech on a nonpublic forum
    minimal scrutiny...reasonable and content neutral
  27. official religious message or observance analysis (establishment clause)
    • 1. is it coercive?
    • 2. does it pass the lemon test?
    • 3. is it an endorsement of religion?
    • 4. is it denominationally neutral?
    • 5. is the practice deeply embedded in our history and tradition?
  28. financial aid to religion analysis (establishment clause)
    • 1. apply Lemon or Endorsement Test
    • 2. does the funding impermissibly advance or endorse religion?
    • a. secular in content?
    • b. neutrality?
    • c. private choice?
    • 3. is the funding a device created for purose of aiding a religious cause?
    • 4. does the funding require close monitoring to ensure that it is not used to inculcate religion?
  29. religious accomodations analysis (establishment clause)
    • 1. is the accomondation required by the Free Exercise Clause?
    • 2. does the accomodation impermissibly advance or endorse religion?
    • 3. if exclusively religious accomodation:
    • a. does accomodation alleviate an obstacle to the exercise of religious choice, or does it create an incentive or inducement for making that choice?
    • b. does accomodation impose substantial burdens on nonbeneficiaries?
    • c. is accomodation provided to all similarly situated relions w/o favoritism or discrimination?
    • d. is discretionary gov power delegated to relgious authorities?
  30. resolution of ecclesiastical dispute analysis(establishment clause)
    • Does dispute involve issues of religious doctrine or polity?
    • - if yes...defer to religous body to avoid "doctrine entanglement" (court refuses to get in the middle of this)
    • - if no...apply neutral principles of law
  31. free exercise clause analysis (religion)
    • 1. does the law significantly burden a sincerely held religious belief?
    • 2. is the law burdening religion neutral and generally applicable or does it simply single out religion for discriminatory treatment?
    • a. neutral - NO FREE EXERCISE CLAIM if valid and neutral law of generally applicability
    • b. discriminatory - FREE EXERCISE CLAIM applying strict scrutiny
  32. exceptions in which there is a free exercise claim if the law if formally neutral (religion)
    • 1. parental control of child's education
    • 2. regulation of religious belief rather than conduct
    • 3. system of exemptions requiring individualized assessment of reasons for relevant conduct
    • 4. regulation of religious speech
    • 5. flat tax that operates as prior restraint on religious exercise
  33. discriminatory compelling gov interests that have passed strict scrutiny
    • 1. eliminating racial discrimination
    • 2. conducting internal gov affiars
    • 3. functioning of social security system
  34. O'Brien Test for expressive conduct - intermediate scrutiny (free speech)
    • 1. is the regulation w/i the constitutional power of gov to enact?
    • 2. does the regulation furhter an important or substantial gov interest?
    • 3. is the gove interest unrelated to the suppression of free speech? (if state interest IS aimed at suppression of speech strict scrutiny applies)
    • 4. is the incidental restriction on speech no greater than necessary to achieve that interst? (means/ends analysis)
  35. Spence Test (free speech)
    • 1. intent to convey a particularized message (involves speaker)
    • 2. great likelihood that under the circumstances the message would be understood by those who viewed it (involves receiver)...intentional, particularized, communicated
  36. early approach to what publicly-owned property must be made available for speech and under what circumstances
    consider compatibility of speech with normal or principle uses of the property
  37. modern approach toward what publicly-owned property must be available for speech and under what circumstances
    classify property as traditional, designated, or nonpublic forums
  38. traditional public forum (free speech)
    public property which by long tradition has been devoted to assembly and debate (i.e. - streets and parks)

    TEST - strict scrutiny for content based restrictions; intermediate scrutiny for content neutral TPM restrictions
  39. designated public forum (free speech)
    public property which the gov has opened for use by the public for excessive activity

    TEST - same as traditional forum (strict scrutiny = content based; intermediate scrutiny = content neutral)
  40. nonpublic forum (free speech)
    public property which is not by tradition or designation a forum for public communication

    TEST - restriction must be reasonable and viewpoint neutral
  41. intermediate scrutiny for content-neutral time, place, and manner restrictions on speech in traditional or designated public forums
    • 1. content neutral?
    • 2. significant gov interest?
    • 3. narrowly tailored?
    • 4. ample alternative channels?
  42. how may gov create a "limited" designated public forum?
    limiting access to the forum based on speaker identity or subject matter

    restrictions must be reasonable and viewpoint neutral
  43. observations regarding religious speech
    • 1. protected under 1st like other forms of speech
    • 2. can be both a subject matter and a viewpoint
    • 3. court repeatedly has rejected the argument that compliance with the Establishment Clause legitimizes content-based discrimination against private public speech
  44. noncurricular student speech - material disruption test (not school sponsored)
    school can restrict speech of students if that speech constitutes a material disruption of the school day

    • - must be some basis for thinking this way more than mere fear or apprehension that disruption will occur
    • - exception established by Morse v. Frederick excludes speech advocating illegal drug use
  45. significance of O'Brien Test as standard
    1. regulation treated as content-neutral if gov interest is unrelated to suppression of free expression (i.e. - aimed at noncommunicative element or secondary effect)

    2. sets standard of intermediate scrutiny for all content-neutral regulations of speech - whether time, place, manner restrictions or restrictions on noncommunicative or secondary effects
  46. test for curricular/quasi-curricular activities (school speech) - school sponsored
    Educators may exercise control over style and content of student speech in school-sponsored expressive activities so long as restrictions are reasonably related to legitimate pedagogical concerns

    concerns include ensuring that students: (1) learn appropriate lessons, (2) aren't exposed to inappropriate material given their ages, and (3) don't mistakenly attribute the viewpoints of particular speakers to the school
  47. free speech includes right not to speak - compelled speech
    while the state isn't subject to Free Speech Clause limitations in its own speech, it may not force individuals to endorse or communicate its message
  48. right not to speak involves
    • 1. compelled speech
    • 2. anonymous speech
    • 3. compelled financial support of speech and/or association of others
    • 4. compelled access to speech of others
  49. compelled speech analysis
    • 1. has gov compelled person to utter or be associated with undesirable speech?
    • a. no - rationality review
    • b. yes regarding particular content - strict scrutiny
    • c. yes unrelated to content - intermediate scrutiny
  50. free speech and assembly includes right to may interfere with this right by:
    • 1. prohibiting or punishing membership in a group
    • 2. requiring disclosure of group membership
    • 3. restricting activities centrally linked to purpose of association
    • 4. compelling unwanted association
  51. requiring disclosure of group membership analysis (free association)
    1. gov may require disclosure of membership, where disclosure will chill association, only if it meets strict scrutiny

    2. OK to compell candidates to disclose their political campaign contributors
  52. free speech analysis
    • 1. is the speech restriction imposed by the government?
    • 2. is the restriction content-based?
    • 3. is gov acting in special capacity in restricting speech?
    • 4. is gov compelling speech rather than restricting it?
    • 5. is the gov restricting ppl's ability to associate for expressive purposes?
  53. distinction b/t content-based and content-neutral restrictions
    • content based = strict scrutiny
    • content neutral = intermediate scrutiny
  54. areas where intermediate scrutiny applies
    • 1. content-neutral TPM restrictions
    • 2. expressive conduct
    • 3. content-based on its face but aimed at secondary effects
    • 4. commercial speech or airwaves
  55. definition of content-based restriction
    applies to some speech, but not all, based on its content
  56. definition of content-neutral restriction
    regulates all speech the same, regardless of its content...neither based on subject matter or viewpoint
  57. 2 types of content-based restrictions
    • 1. subject matter
    • 2. viewpoint
  58. categories of speech that aren't protected or less protected
    • Not Protected
    • 1. incitement of illegal activity
    • 2. obscenity
    • 3. defamation

    • Less Protected
    • 1. sexuallly explicity speech
    • 2. commercial speech
  59. rights ancillary to freedom of speech
    • 1. compelled speech
    • 2. right of association
    • 3. campaign contributions
    • 4. freedom of press
  60. modern incitement test (speech that incites violence or illegal acts)
    if the speech is directed at inciting imminent lawless action and is likely to produce such action
  61. true threats (free speech)
    • 1. USSC has recognized an exception to free speech but hasn't actually defined it
    • 2. threats may not be punishable if reasonable person would have understood it as hyperbole
    • 3. threats of social ostracism and politically-motivated boycotts are protected
    • 4. intimidation and threats not protected
  62. fighting words
    not protected...constitute a direct personal insult or epithet likely to provoke a violent response
  63. 3 different approaches to overturning convictions based on fighting words
    1. narrow the definition to apply only to speech directed at another person that is likely to produce a violent response

    2. invalidating these laws as overbroad or vague

    3. invalidate some laws regarding fighting words but not others
  64. last case in which USSC has upheld fighting words conviction
  65. significance of Cohen regarding offensive speech
    • 1. speech may not be regulated or punished simply b/c it is offensive
    • 2. limits captive audience exception to free speech doctrine - default rule in public sphere is that audience must avert its eyes and ears
  66. definition of obscenity
    material that deals with sex in a manner appealing to prurient interest
  67. Miller 3 part test regarding obscenity
    • 1. prurient interest - judged by local community standards
    • 2. patent offensiveness - nudity alone not sufficient
    • 3. no serious value - RPP standard regarding value
  68. Stanley rule regarding gov regulation of pornography
    can't ban possession in the home but this doesn't apply to child pornography
  69. basic rules governing commercial speech
    • 1. false commercial advertising can be prohibited
    • 2. misleading commercial advertising can be prohibited
    • 3. commercial advertising concerning unlawful activities may be prohibited
  70. 4 part test regarding commercial speech - intermediate scrutiny
    • 1. advertising illegal activities or false or deceptive advertising?
    • 2. substantial gov interest?
    • 3. directly advancing gov interest?
    • 4. no more extensive than necessary?
  71. what does Planned Parenthood v. Casey hold?
    • 1. reaffirms Roe
    • 2. strict scrutiny no longer is used in evaluation gov regulation of abortion
    • 3. new test = undue burden
    • 4. trimester distinction overruled
  72. undue burden test (abortion; Planned Parenthood)
    undue burden exists if its purpose/effect is to place a substantial obstacle in the path of a woman seeking an abortion b/4 the fetus attains viability
  73. Harlan approach to constitutionality (Lochner)
    presumption of constitutionality that is rebuttable

    court can't invalidate a law just b/c they think it is stupid...may only invalidate law if shown that attempted exercise of police power was arbitrary, unreasonable, or discriminatory
  74. Holmes approach to constitutionality (Lochner)
    presumption of constitutionality that is basically irrebuttable

    as long as the court can conceive of some proper purpose for the law even if the legislature hasn't proven it, the statute should be deemed constitutional
  75. fundamental rights - the right of privacy - has been held to include
    • 1. right of parents to control the upbringing of their children
    • 2. right to procreate
  76. Roe v. Wade holding
    held - women have constitutional right to get an abortion for any reason at any time during the nine months of pregnancy; right isn't absolute and may be regulated if promoting a compelling state interest

    • developed the trimester distinction
    • a. 1st trimester - no state regulation
    • b. 2nd trimester - state regulation reasonably related to maternal health is allowed
    • c. 3rd trimester - regulation, including prohibition, to promote interest in the potentiality of human life is allowed
  77. doctrinal problems with Roe
    • 1. no basis in text, original understanding, or tradtion for fundamental right to abortion
    • 2. how braod is the so-called "right to privacy?"
    • 3. Court actually decided the question of when life begins w/o admitting it and therefore didn't have to support its decision with reasons
    • 4. court's focus on fetal viability is arbitrary
  78. arguments for abortion
    • 1. fetus not a person therefore laws infringe upon woman's right to reproductive autonomy
    • 2. even if fetus is person, not C to compell woman to carry it for 9 months and give birth
  79. type of scrutiny applied to sex discrimination
    started out as strict scrutiny (reed v reed) but USSC finally adopted intermediate scrutiny (frontiero, boren)
  80. spending power issues
    1. whether power to tax and spend can be for any purpose or is limited to those purposes set forth in Congress' enumerated powers

    2. whether congress can attach conditions on expenditures of funds to accomplish ends that are unrelated to its enumernated powers
  81. can congress place conditions on grants of funds?
    so long as the conditions are expressly stated and have some relationship to the prupose of the spending program

    - extends into areas that congress might noth otherwise be able to regulate
  82. limits on the power of congrese to place conditions on funding (South Dakota v. Dole)
    • 1. for general welfare
    • 2. unambiguously stated
    • 3. can't be related to fed interest in particular national projects or programs
    • 4. not barred by other C provisions
  83. commerce claues analysis
    • 1. is the entire class of regulated activity w/i congress C reach?
    • 2. is the person/activity at issue a member of that class?
  84. 3 categories of activities that can be regulated by congress under commerce clause
    • 1. channels of interstate or foreign commerce
    • 2. instrumentalities of interstate commerce and persons or things in interstate commerce
    • 3. activitives that have substantial affect on interstate commerce; considerations:
    • a. economic v. noneconomic activity
    • b. national v. local (is the activity traditionally regulated by state gov?)
    • c. activity v. inactivity
  85. Lopez substantial affects test
    activity regulated by congress must have a substantial affect on interstate commerce
  86. internal limits on congress ability to regulate under commerce clause (Lopez)
    derived from the constitution which mandates uncertainty with congressional legislation under commerce clause by withholding from congress a plenary police power that would authorize enactment of every type of legislation

    more original view of the commerce clause and concept of enumerated powers
  87. external limits on congress ability to regulate under commerce clause (Lopez)
    derived from essential balance b/t fed and state powers that the constitution creates...allowing congress to regulate in areas that have traditionally been left to the states will blur the boundaries b/t the spheres of fed and state authority and political responsibility would become illusory
  88. criticism of substantial affects test (commerce clause - Lopez)
    too broad a test and under it there is nothing that congress couldn't regulate thereby giving it a police power which is contrary to Framer's intent
  89. US v. Morrison (commerce claues)
    goes further than Lopez in limiting the scope of Congress' commerce power by holding that Congress can't regulate a noneconomic activity by finding that, looked at cummulatively, it has a substantial affect on interstate commerce

    aggregation principle doesn't apply to noneconomic activity...requires both "but for" and proximate cause

    Key Limiting Factors: noneconomic activity + area traditionally regulated by state
  90. Gonzales v. Raich (commerce clause...medicinal marijuana)
    activity is economic even if it isn't commercial

    Economic = production, distribution, consumption of commodities

    stands for proposition that intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact
  91. 2 views of Enforcement Clause (Section 5 of 14th)
    Nationalist perspective - congress can expand the rights protected by 14th; relation b/t enforcement clause and N&P

    federalist perspective - congress only has the power to enforce the rights protected by 14th
  92. Enforcement Clause Analysis
    • 1. congress must identify a history and pattern of unconstitutional discrimination by the states
    • 2. congress' remedial legislation must be congruent and proportional to the targeted violation
  93. issues surrounding 10th and state autonomy
    • 1. how important is the protection of state sovereignty and federalism?
    • 2. should it be the role of the fed judiciary to protect state prerogatives or should this be left to the political process?
  94. 2 approaches to interpreting 10th
    • 1. 10th isn't a separate constraint on Congress but rather is simplya reminder that Congress only may legislate if it has authority under the constitution
    • - looks to congress powers under Art I and as long as are acting w/i this scope of power the law will not be declared unconstitutional as violating state sovereignty

    2. 10th protects state sovereignty from federal intrusion...reserves a zone of activity to the states for their exclusive control, and fed laws intruding into this zone should be declared unconstitutional
  95. Plain Statement Rule (10th A and state autonomy; Gregory v. Ashcroft)
    if congress intends to alter the usual constitutional balance b/t the states and the fed gov it must make its intention to do so unmistakeably clear in the language of the statute

    - fed law that imposes a substantial burden on a state gov will be applied only if congress clearly indicates that it wanted the law to apply
  96. anti-commandeering principle (NY v. US; state sovereignty)
    when congress is telling the state what kind of laws they must pass this is a commandeering of the core function of the state gov

    - fed gov has the authority to regulate individuals but not the states...may encourage state action thru various incentive methods provided the ultimate decision to comply lies with the states
  97. types of fundamental rights
    • - 1st A rights
    • - right to travel
    • - right to marry
    • - right to vote
    • - right to privacy
    • - access to justice
  98. Prinz v. US (10th and state autonomy...fed law using state CLEOs)
    congress doesn't have authority to illicit the service of state officers to implement its laws w/o compensation...such authority transfer transfers Pres executive power onto those state officers thereby reducing the Pres power and threatens state sovereignty

    congress violates the 10th when it conscripts (compels into service/drafts) state gov...must pay them for their service
  99. hybrid right
    challenged law burdened conduct protected by both Free Exercise Clause and some other C protected right

    i.e. - regulation of parental control of child's education; regulation of religious speech
  100. 2 ways to look at the adoption of 11th
    • - changed court's decision in Chisholm b/c they were wrong
    • - changed constitution b/c it was wrong
  101. central issue surrounding 11th
    how should state sovereignty be weighed against fed supremacy?
  102. 3 theories regarding meaning of 11th
    • - immunity interpretation
    • - diversity interpretation
    • - separation of powers/federalism interpretation
  103. immunity interpretation of 11th
    restriction on the SMJ of fed court that bars all suits against state gov
  104. diversity interpretation of 11th
    restricts fed court's SMJ only in preculding cases being brought against states that are founded solely on diversity

    doesn't bar litigation based on FQ
  105. separation of powers/federalism interpretation of 11th
    limits fed judges (not congress) in cases involving states or state officials...protects virtually all suits in fed court
  106. 3 major ways around 11th
    • 1. suits against state officers for injuctive relief or money damages
    • 2. suits based on state consent to fed court jurisdiction (waiver)
    • 3. suit pursuant to congressional statutes, especially pursuant to civil rights (congressional abrogation)
  107. Summary of 11th Rules
    • 1. CANNOT sue state govs or their agencies in fed court
    • 2. CANNOT sue state officials in their official capacities for money damages to be paid out of state treasury

    • 1. CAN sue state officials in their official capacities for prospective relief (injunctions) that requires state officials to comply with fed constitution, or laws, even if compliance will result in substantial state expenditures (if not asking for money then can sue these individuals in their official capacities)
    • 2. CAN sue state officials in their individual capacity for money damages, even if state law requires that the officer be idemnified with funds from the state treasury
  108. definition of dormant commerce clause
    • state and local laws are unconstitutional if they place an undue burden on interstate commerce
    • - fed law trumps conflicting state law under Supremacy Clause
    • - DCC is preemption by SILENCE (absence of legislation) - nontextual limit on state powers to regulate interstate commerce
  109. modern DCC analysis - presumptions
    - if state law discriminates against OoS, strong presumption that law is unconstitutional and it will be upheld only if necessary to achieve important interest (facially discriminatory then burden on state to overcome presumption)

    • - if state law treats in-staters and OoS alike, presumption is that law is constitutional and can be rebutted only by showing that the burden imposed on such commerce is clearly excessive in relation to the putative local benefits (balancing test)
    • FACTORS:
    • 1. exclude virtually all OoS from a particular state market
    • 2. imposes a cost on OoS
    • 3. motivated by a protectionist purpose
  110. modern DCC analysis - protectionist state legislation
    • 1. facially discrimnate against OoS?
    • 2. if not, discriminatory in purpose or effect?
    • 3. disproportionate adverse effect
  111. congressional approval exception (DCC)
    discriminatory state law will be upheld if approved by Congress b/c Congress has plenary power to regulate commerce among the states

    means there is no supremacy clause issue
  112. market-participant exception - DCC analysis
    state law may favor its own citizens when dealing with gov-owned business and receiving gov benefits...if state is mkt participant, rather than regulator, DCC doesn't apply

    LIMITATION - state may favor in state purchasers but may not attach conditions on sale of those goods after they come to rest in private hands
  113. types of DCC cases
    • - laws that limit access to in-state resources (OR Waste Systems)
    • - laws that limit access to local markets by OoS (Granhom v. Heald)
    • - laws that require use of local business (South Central Timber)
  114. P&I Clause of Art. IV
    Discrimination must be necessary to achieve a substantial gov interest
  115. P&I Analysis (art IV)
    • 1. is the action in question fundamental?
    • 2. is there a substantial reason for the discrimination?
    • 3. does the discrimination bear some close relation to that reason including consideration of less restrictive means?
  116. key differences b/t P&I and DCC
    - P&I can only be used if there is discriminatino against OoS whereas DCC can be used to challenge state and local laws that burden interstate commerce regardless of discrimination

    - aliens and corps can use DCC

    - 2 excpetions to DCC don't apply to P&I
  117. P&I has customarily been applied in 2 contexts
    • 1. constitutional rights
    • 2. important economic activity

    recreational activity doesn't fit!!!!
  118. Executive Power involves
    - justiciability - no one is above the law; issue may be nonjusticicable political question if it involves an intra-branch dispute such that judicial interference would violate the separation of powers

    - privilege - inherent presidential power but not absolute

    - power of USSC in public view - are at least on equal footing with president; seen as neutral arbitrator and not partisan institution
  119. Presidential Immunity
    • - president enjoys a privilege of confidentiality regarding his communications but isn't absolute and must be exercised in more than a generalized assertion to be effective in a criminal trial (US v. Nixon)
    • *privilege must yield when there is an important countervailing interest

    - president may not be sued for money damages (civil litigation) for conduct in office (Nixon v. Fitzgerald)

    - president doesn't have absolute immunity from suits regarding conduct prior to becoming president...immunity doesn't apply to unofficial acts (Clinton v. Jones)
  120. Executive Agreements (Dames & Moore v. Regan)
    When congress has acquiesced to the president's action and such action is necessary to the resolution of a major foreign policy dispute, the president is acting w/i his authority when he enters into such executive agreements with foreign governments

    silence of congress doesn't mean that they disapprove of a particular presidential action
  121. Legislative Veto (Ins v Chadha)
    Congress gave themselves the authority to override Presidential Veto with the vote of only one house...even though this may be more efficient congress can't enact law that allows it to get around the requirements set forth in the C

    there are very limited and explicit instances when one House may act alone and the one-House veto is not included ini that very short list

    Dissent (functionsit approach) - power augments rather than reduces executive power and is important b/c w/o it ppl are left with Hobson's choice (unresolved national problems or unelected persons making policy unchecked)
  122. Appointments Power
    congress has the ability to decide who is an inferior officer but MAY NOT give itself the appointment power

    congress can only give this power to president, judiciary, or heads of dept
  123. Removal Power
    not in the constitution

    Principle - gnerally the president may remove executive officials unless removal is limited by statute; congress may limit the removal power if it is an office where independence from the president would be desirable but may not completely prohibit all removal nor give power to itself
  124. Removal Power Analysis
    • 1. is the office one in which independence from the president is desirable?
    • a. if yes, congress may limit the removal power and so may the judiciary even if there is no statutory restriction

    • 2. are congress' limits on the removal constitutional?
    • a. congress can't completely prohibit removal but can limit it to good cause (Morrison v. Olsen)
    • b. congress can't give itself the sole power to remove an executive officer
  125. 3 questions involving Commander and Chief Power
    • 1. nature of habeas corpus?
    • 2. reach of constitution?
    • 3. deference to the executive on the military?
  126. Youngstown commander and chief analysis
    • 1. presidential power is GREATEST when action is pursuant to congressional authority
    • 2. congressional silence = zone of twilight where President and Congressmay have concurrent authority
    • 3. presidential power is LEAST when action incompatible with expressed or implied will of Congress
  127. common thread of executive detention and trial of enemy combatants
    idea that extra-territoriality questions turn on objective factors and practical concerns, not formalism

    • 3 factors
    • 1. citizenship and status of detainee and adequacy of the process thru which the status determination was made
    • 2. nature of sites where apprehension and then detention took place
    • 3. practical obstacles inherent in resolving prisoner's entitlement to the writ
  128. 3 part balancing test regarding DP and detention of enemy combatants (Hamdi)
    • 1. interest to individual
    • 2. ability of additional procedures to reduce risk of erroneous deprivation
    • 3. gov interest
  129. Hamdan v. Rumsfeld
    military tribunals for enemy combatants
  130. Boumedianne v Bush
    habeas corpus for enemy combatants
  131. 3 questions regarding original meaning of EPC
    • 1. what was scope of anti-discrimination principle
    • 2. was EPC just anti-discrimination or also anti-segregation
    • 3. was the EPC intended to prohibit private forms of discrimination that would clearly violate the EPC if embodied in legislation
  132. 2 basic frameworks for EPC analysis
    • 1. law draws distinction or makes classifications among various persons
    • 2. laws draw distinction or makes classifications that burden fundamental rights
  133. three analytical questions regarding EPC and classifications/distinctions of persons
    • 1. What is the classification - facial classifications or facially neutral but discriminatory in purpose of effect?
    • 2. what is the appropriate level of scrutiny?
    • 3. does the gov law or action satisfy the appropriate level of scrutiny?
  134. strict scrutiny for suspect classifications
    i.e. - race, national origin, alienage (with exceptions)

    compelling purpose and no less discriminatory means
  135. intermediate scrutiny for semi-suspect classifications
    i.e. - gender, nonmarital children

    important purpose and substantially related
  136. minimal scrutiny for all other classifications
    i.e. - age, economic status, poverty, disability

    legitimate purpose and rationally related
  137. direct effects of Brown v. Board
    • - subsequent cases declaring segregation unconstitutional in other public facilities
    • - failure to directly segregate schools ("all deliberate speed" = take your time)
  138. indirect effects of Brown
    • - Brown galvanized public support for that legislation in an unconventional way
    • - ppl were able to see the backlash, ugly reaction in the south and were so repulsed that galvanized support for legislation granting significant subsequent rights to blacks
  139. AA and Race Preferences in Public Education
    strict scrutiny is the appropriate standard

    race may be used as one factor to attain educational diversity but not the only factor

    AA must be remedial in nature targeted at specific findings, policy, and/or history of discrimination
  140. cases regarding AA and public schools
    • - Bakke - strict scrutiny, remedial in nature
    • - Grutter - undue burden; asserted purpose and narrowly tailored
    • - Gratz - race can't be the decisive factor
    • - parents v seattle school district - racial balancing doesn't serve compelling gov interest and promotes inferiority
  141. AA and public employment
    Adarand - 5th requires same strict scrutiny of race-based programs developed by the fed gov as EPC of 14th requires of the states

    only way for AA program to be upheld in the employment context is if it is a remedy
  142. racially discriminatory purpose and effect proven by
    • - impact so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes
    • - shown by history surrounding gov action
    • - shown by legislative or administrative history of the law
  143. discriminatory purpose and effect cases
    Washington v Davis - EPC violation when there is discriminatory treatment (intentional conduct) but not when there is discriminatory impact (unintended consequences)

    • Ricci - strong-basis-in-evidence standard...ER can engage in intentional discrimination for the asserted purpose of avoiding/remedying an unintentional disparate impact provided ER had strong basis in evidence to believe it would be liable for such impact if it didn't take the race-conscious discriminatory action
    • a. DISSENT - key condition is that ER must have good cause to believe that device wouldn't w/stand examination for business necessity
  144. sex discrimination cases
    Reed v. Reed - invalidated gender classification using rational basis review

    Frontiero - sex classifications are inherently suspect and should be subjected to strict judicial scrutiny

    Boren - intermediate scrutiny is appropriate level of review regardless of which sex is being discriminating against

    US v. VA - if program is restricted to one sex and unique then must be opened to members of opposite sex who have the will and capacity to participate
  145. exceptions to alienage classification in which rational basis review is sufficient
    • - gov or political functions
    • - deference to fed laws discriminating against aliens
  146. heightened scrutiny doesn't apply when: (Cleburne)
    • 1. individuals in group have distinguishing characteristics
    • 2. legislative classifications likely to be valid
  147. 2 parts of DPC
    procedural - notice and opportunity to be heard?

    substantive - deprivation fundamentally fair or right?
  148. footnote 4 of Carolene Products
    • 1. is the law rational or reasonable?
    • 2. does the law fall into one of three categories?
    • a. contravene constitution
    • b. interfered w/ political process (accountability)
    • c. interfered/oppressed insular and discrete minorities

    left economic DP to be construed via rational basis
  149. modern rational basis review under DPC
    virtually all restrictions tested under the rational basis test are upheld b/c allows a vast range of permissible interests and generally upholds laws even when their factual basis is highly questionable, even when the laws are overinclusive or underinclusive, and even when there are many less restrictive alternatives that may still accomplish the law's goal
  150. economic liberties - Williamson v. Lee Optical
    dc adopted Harlan's rational basis review but the USSC adopted the formalist (plausible reason) approach of Holmes eliminating the rational or reasonable avenue as a meaningful possiblity for invalidating laws
  151. should rational basis review of economic liberties be stricter?
    Wallace - YES

    • - fear of Lochner is misplaced...EPC analysis different than DPC analysis
    • - abdication of meaningful review actually undermines rather than preserves judicial legitimacy...rationality review shouldn't be in effect a political question ruling
    • - assumptions about default operations of policy are faulty
    • - courts should discipline legislatures to act from public-regarding purposes, not blatant self-serving private purposes
  152. types of fundamental rights
    • - right of parents to control the upbringing of their children
    • - right to procreate
    • - right to privacy
    • - right to abortion???
  153. right to privacy cases
    1. Mapp v. Ohio - states are prohibited from admitting evidence obtained by an unlawful search and seizure based on the notion of a "right of privacy"

    2. Griswold v. Connecticut - unconstitutional for law to restrict purchase and use of contraceptives; a gov purpose to control/prevent activities constitutionally subject to state regulation may NOT be achieved by means which sweep unnecessarily braodly thereby invading the area of protected freedoms

    3. Loving v. VA - right to marriage includes private decision as to whom to marry upon which state may not infringe

    4. Roe v. Wade - right to privacy includes the right to obtain an abortion if woman so chooses; trimester framework

    5. Planned Parenthood v. Casey - reaffirms Roe; strict scrutiny no longer used in evaluation of gov regulation of abortion; new test adopted - undue burden (there is an undue burden if law's purpose or effect is to place a substantial obstacle in the path of a woman seeking abortion b4 fetus attains viability); trimester distinction overruled
  154. test for determining if something is a fundamental right
    whether it is part of our history and tradition so as to be ranked funadmental

    deeply rooted in our history and tradition

    right implicit in the concept of ordered liberty
  155. primary criticism of Roe v. Wade
    • took issue out of the hands of the political process and constitutionalized the issue when there was little basis for it in the text or tradition
    • - leaving it to political process would have avoided the polar extremes created by the decision even if process was slow
  156. definition of unenumerated rights
    fundamental rights deeply rooted in tradition and history and those protecting liberty
  157. sodomy law cases
    1. Bowers v. Hardwick (GA) - statute criminalizing sodomy b/t private, consenting adults is constitutional b/c no constitutionally protected right to engage in homosexual sex

    2. Lawerence v Texas - overrules Hardwick finding that private lives of consenting adults isn't somehting that can be regulated and controlled by gov
  158. importance of how genearl rights are defined
    if you define it broadly, more likely to find a fundamental right

    if you define it narrowly, less likely to find a fundamental right
  159. physician assisted suicide - Washington v. Glucksburg
    represents an end to the dispute of what role the USSC has over social policy/fundamental (unenumerated) rights
  160. partial birth abortion cases
    • 1. Stenberg v. Carhart - law forbidding partial birth abortion invalidated b/c didn't have a "life and health" exception
    • 2. Gonzales v. Carhart - reverses Stenberg; congress is the one who gets to make the decision in a situation where there is medical uncertainty, and in the hearings they determined that an exception for the "health of the mother" wasn't necessary; if disagreement among medical community the rational basis scrutiny essentially permits Congress to do whatever it wants
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Con Law II