CAB Con Law

• Definition: P must allege and prove that he has been injured or imminently will be injured. Necessary elements are:
• Injury
• Causation and redressability (court must be able to remedy the injury)
• No 3rd Party standing (cannot assert claims of others) (exceptions: close relationships, 3rd P cannot assert their own right, organization on behalf of members)
• No generalized grievances (ex. taxes - taxpayers only have standing to challenge G expenditures subject to a statute, but not tax credits)

• Definition: Whether a federal court may grant pre-enforcement review of a statute or regulation
• Look at: hardship that will be suffered without preenforcement review; fitness of the issue and the record for judicial review
• (comes up on MBE with requests for declaratory judgement)

• Definition: If events after filing the lawsuit ended P's injury, the case must be dismissed as moot
• Exception: wrong capable of repetition but evading review
• Exception: voluntary cessation of injurious conduct by D (but can be repeated)
• Exception: class action suits (as long as one member of the class is still suffering an injury)

• Definition: questions that the Federal crts will not review b/c the issue is best resolved in the other branches or are nonjusticiable
• "republican form of government clause" - always dismissed as nonjusticiable
• Challenges to the President's conduct of Foreign Policy
• Challenges to impeachment and removal process
• Chalenges to partisan gerrymandering

• all cases from state court/fed crts of app come to SCOTUS by writ of certiorari
• appeal from three-judge fed district crt decision
• Original and exclusive jurisdiction over suits between states
• Must be a final judgement in highest state crt, Crt of App, or 3-judge district crt
• SCOTUS cannot review cases involving claims under fed and state law where outcome of interpretation of fed law will not affect outcome of case b/c of state law

• Sovereign immunity: 11th amendment bars
• Suits against officers are allowed
• Federal crts will not enjoin pending state crt proceedings
• Exceptions:
•  - Waiver (explicit)
•  - states may be sued purusant to fed laws based on section 5 of 14th amendment
•  - Fed may sue states
•  - Bankruptcy proceedings (creditors seeking paid taxes)

• Must be expressed or implied authority (Congress has no general police power, except DC, military, Indian reservations, federal land)
• Necessary and proper clause
• Taxing/spending power clause (for general welfare)
• Commerce cause (interstate, with indian tribes, foreign)
• Limitations: 10th amendment limits, and section 5 of 14th amendment

• Congress may regulate:
• channels of interstate commerce
• the instrumentalities of interstate commerce and person or things in interstate commerce
• Economic activities that have a substantial effect on interstate commerce (for non-economic activity, a substantial effect cannot be based on cumulative impact)

• 'all powers not granted to the US, nor prohibited to the states, are reserved for the states or the people'
• Congress may prohibit harmful commercial activity by state governments
• Congress cannot compel state regulatory or legislative action
•  - but can induce activity by putting strings on grants, so long as 1) conditions are express, 2) relate to purpose of program, 3) not unduly coercive

• May not create new rights or expand the scope of rights
• Congress may act only to prevent or remedy violations of rights recognized by the courts and such violations
• "proportional" and "congruent" to remedy constitutional violations

• No limit exists on Congressional authority to delegate its powers
• Legislative and line-item vetoes are unconstitutional (Congressional acts must have bi-cameralism, presentment, and Presidential signature
• Congress may not delegate executive authority to itself or its officers

• Treaties - agreements btwn US and foreign country negotiated by POTUS and are effective when ratified by the Senate
•  - prevail over STATE laws
•  - prevail over FED laws previously adopted
•  - cannot conflict with Constitution

• an agreement between the US and a foreign country that is effective when signed by POTUS and the head of the foreign nation
• can be used for any purpose
• Prevail over conflicting STATE law
• Does NOT prevail over conflicting FED law or Constitution

Unconstitutional for Congress by statute to designate the capitol of a foreign country

• POTUS has broad authority to use American troops in foreign countries
• On MBE, almost always constitutional, even when absurd

• POTUS appoints ambassadors, fed judges, and officers of US
• Congress may vest appointment of inferior officers in POTUS, heads of departments, and lower federal courts
• Congress may not give itself or its officers appointment powers
• POTUS may not make recess appointments during intrasession recesses that are less than 10 days

• Unless limited by statute, POTUS may fire any executive branch office
• Congress may limit removal for an office where independence from POTUS is desireable (ex. special prosecutor and Nixon)
• Congress cannot prohibit removal, but may limit it to where there is good cause

• POTUS, VP, federal judes, and officers can be impeached and removed from office for treason, bribery, or high crimes and misdemeanors
• Impeachment does not remove the person from office
• HR impeachment requires majority vote; Senate conviction requires 2/3 vote

• Absolute immunity to civil suits for monetary damages for any action while in office
• does not apply to action that occurred prior to taking office

• POTUS has executive privilege over presidential papers and conversations
• must yield o other important gov't interest

• power to pardon those accused or convicted
• only of federal crimes (not state or civil)

• Supremacy clause of Art VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land
• Express - Fed law expressly provides that states may not write laws in the area
• Implied - 
•  - Fed and state law are mutually exclusive - fed wins
•  - state law impedes achievement of fed objective - fed wins
•  - Congress evidences a clear intent to preempt (ex. strict state immigration law)
• State cannot tax/regulate Fed

• (DC Clause) State or local law is unconstitutional if it places an undue burden on interstate commerce (Art. IV)
• (P&I Clause) No state may deny citizens of other states of the privileges or immunities of its own citizens
•  - always the wrong answer on MBE unless question involves the right to travel
• Art. 14th amendment - must involve the right to travel
• Even if not discriminatory, use balance test to see if benefits outweigh burden interstate commerce
• Exceptions: Congressional approval; market participant (state can favor its own citizens for receiving benefits or in dealing with Gov't owned business, like "in-state tuition")

• State/local law discriminating against out-of-staters with regard to their ability to earn livelihood, if violates the P&I clause of Art. IV, unless it is necessary to achieve an important government purpose
• Law must discriminate against out-of-staters
• Discrimination must be with regard to a fundamental right or economic activities
• Corporations and aliens cannot use the privileges and immunities clause
• discrimination must be necessary to achieve an important gov't purpose

• States may not use their tax systems to help in-state business
• State may only tax activities if there is a substantial nexus to the state
• State taxation of interstate business must be fairly apportioned (only tax that which is connected to it)

• Crts in one state must give full faith and credit over the parties and the subject matter so long as:
• Crt that rendered the judgement had jurisdiction over the parties and the subject matter
• the judgment was on the merits
• the judgment is final

• The Constitution only applies to government action
• Congress, by statute, may apply constitutional norms to private conduct
• 13th amendment may be used to prohibit private race discrimination (only slavery, not discrimination, violates the 13th Amd. Congress can adopt a law under 13th prohibiting private discrimination)
• Commerce power can be used to apply constitutional norms to private conduct
• Congress cannot use section 5 of 14th Amd. to regulate private behavior

• Public function exception: private entity performing a task traditionally, exclusively done by the gov't (ex. company town) (does not apply to private utility)
• Entanglement exception: gov't affirmatively authorizes, encourages, or facilitates unconstitutional activities
• (ex. Crts enforcing racially restrictive covenant)
• (ex. Gov't provides free textbooks to racially discriminatory schools)
• Gov't subsidy is not enough to find state action
• (ex. NO State Action when private school, 99% fed funded, fired a teacher b/c of her speech)
• (ex. NO State Action when NCAA order suspension of coach as state university)
• Look for delegation of authority to private entity

• Bill of Rights applies directly to Federal Gov't only
• Selective incorporation by Due Process clause of 14th amendment applies most of Bill of Rights to states and local gov'ts
• Those not incorporated:
•  -  3rd amd right to not have soldiers quartered in person's home
•  - 5th Amd right to grand jury indicment
•  - 7th Amd. right to jury trial in civil cases
•  - 8th Amd. right against excessive fines

• Rational basis test - a law is upheld if it is rationally related to a legitimate government purpose
• Challenger has burden of proof - no conceivable purpose or no rational relation

• Intermediate scrutiny test - a law will be upheld if it substantially related to an important government purpose
• Interest must be importance
• Means chosen must be substantially related to achieving the government objective (narrowly tailored)
• Does not have to be the best way
• Gov't has the burden of proof

• A law will be upheld if necessary to achieve an compelling government purpose
• The actual goal must be compelling
• Least restrictive alternative - Gov't must show the means are narrowly tailored and there are no less restrictive alternatives
• Gov't has burden of proof

• Whether the gov't has provided sufficient procedures when it takes away life, liberty, or property
• notice, hearing required
• Deprivation of liberty - loss of significant freedom provided by Const. or statute (ex. institutionalizing an adult)
• Deprivation of property - entitlement and that entitlement is not fulfilled
• Government negligence is not sufficient - must be intentional action or reckless action
• In emergency, Gov't is liable only if action "shocks the conscience"
• Gov't failure to protect people from privately inflicted harm does not deny due process

• Balancing test - importance of the interest to the individual; the ability of additional procedures to increase the accuracy of the fact-finding; government's interest in efficient process
• Ex. Must be notice and hearing before welfare is terminated
• Ex. must only be a post-deprivation hearing for SSDI benefits termination
• Ex. School must provide student notice of charges and opportunity to explain before being disciplined
• Ex. Must be notice and hearing before terminating right to custody of child
• Ex. Punitive damages awards require instructions to the jury and judicial review to ensure reasonableness
• An American citizen detained as an enemy combatant must be accorded due process
• Except in exigent circumstances, prejudgement attachment or gov't seizure of assets require notice and hearing

• Rational basis test is used
• Takings clause - gov't may take private property for public use
• Is there a taking?
•  -1) possessory taking - gov't confiscation or physical occupation of property is a taking
•  -2) regulatory taking - gov't regulation is a taking if it leaves no reasonable economically viable use of the property
• Is the taking for public use? (based on gov't action on a reasonable belief)
• Is just compensation paid? (measured by lost to the owner in RMV)
• Examples:
• Regulations on development must be justified on a benefit that is roughly proportionate to the burden imposed - other it is a taking
• A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
• Temporarily denying an owner use of property is not a taking so long as the gov't action is reasonable

• No state shall impair the obligations of contracts (only state and local interference with existing contracts)
• Test: Intermediate scrutiny - 
•  - (1) substantial impairment of party's rights under K?
•  - (2) is law reasonably and narrowly tailored means of promoting an important and legitimate public interest?
• State/local interference with gov't K must meet strict scrutiny
• Ex Post Facto Clause does not apply in civil cases - must meet rational basis test in civil context

Does the gov't have a sufficient reason to take away life, liberty, or property

Whether the gov't differences in the treatment of people is sufficiently justified

• Privacy is a fundamental rights protected under substantive due process
• Right to marry
• Right to procreate
• Right to custody of one's child
• right to keep family together
• Right to control upbringing on one's family
• Right to purchase and use contraceptives
• Right to abortion 
• Right to private consensual homosexual activity
• Right to refuse medical treatment
• NO RIGHT to physician assisted death

• Prior to viability - states may not prohibit abortions, but may regulate abortions so long as do not create an undue burden on the ability to obtain an abortion
• Gov't has not duty to subsidize abortion or provide abortions in public hospitals
• Spousal consent and notification laws are unconstitutional
• Parental notice and consent laws for unmarried minors are OK as long as judicial approval carve-out is an option
• 24 hr waiting period - not undue
• requirement it be performed by physician - not undue burden
• After viability - states may prohibit abortion

• Competent adult has the right to refuse medical treatment, even life-saving medical treatment
• A state may require clear and convincing evidence that person wanted treatment terminated before it is ended
• A state may prevent family members from terminating treatment of another

• Strict scrutiny applied - laws preventing people from moving into a state
• Durational residency requirements must meet strict scrutiny (50 days max)
• Restrictions on foreign travel need meet only the rational basis test

• Strict scrutiny (but regulations preventing fraud only need to be on balance desirable)
• One person, one vote must be met for all state and local elections
• At large elections are constitutional unless proof of discriminatory purpose
• Use of race in drawing election district lines must meet strict scrutiny
• Counting uncounted votes without standards in a presidential election violates equal protection

There is no fundamental right to education

• Any time the law draws a distinction between people, there is an equal protection question:
• What is the classification?
• What level of scrutiny should be applied?
• Does this law meet the level of scrutiny?

• EP Clause of 14th amendment only applies to state and local gov't
• EP Clause of 5th amendment applies to Fed.

• Strict scrutiny
• How to prove existence of racial classification: (1) express or evident, (2) discriminatory impact and discriminatory intent
• Without (1) or (2), rational basis is used

• Strict scrutiny
• Numerical set-asides require clear proof of past discrimination
• Educational institutions may use race as a factor in admissions.
•  - Must show no race neutral alternative.
•  - May not add points to applicant's admission scores
• Public schools may not use race as a factor in assigning students to schools unless strict scrutiny was met

• Intermediate scrutiny
• Gender discrimination is only allowed if there is an "exceedingly persuasive justification"
• Proving existence of gender discrimination: (1) explicit, (2) demonstrating both discriminatory impact and intent - otherwise only rational basis

• Not allowed if based on role stereotypes
• Are allowed if designed to remedy past discrimination and differences in opportunity will be allowed (Navy promotion plan)(Calculation of benefits to remedy past wage discrimination was OK)

• Generally, strict scrutiny is used
• Exception - rational basis is used for:
•  - concerning self-government and democratic process (voting, teacher, jury, probation officer)
•  - Congressional discrimination
• Exception: Intermediate scrutiny is used for undocumented alien children

• Intermediate scrutiny is used
• Laws that deny benefits to all non-marital children, but grant it to all marital children, are unconsitutional

• D.A.W.E.S.
• Disability
• Age
• Wealth
• Economic regulation
• Sexual orientation

• Content-based: strict scrutiny
•  - subject matter restrictions (application depends on topic)
•  - viewpoint restrictions (application depends on ideology)
• Content-neutral: intermediate scrutiny
•  - applies to all speech (all parades in the park)

• Court order that suppress speech (must be obeyed under vacated or overturned)
• Requiring license/permit
•  - must contain procedural safeguards and clear criteria (ex. prompt determination)

• Vagueness: if a reasonable person cannot tell what speech is prohibited and what is allowed
• Overbreath: regulates substantially more speech than the constitution allows to be regulated
• Fighting words are unconstitutionally vague and overbroad on MBE

• Gov't may regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't purpose
• Ex. of symbolic speach
•  - flag burning - protected
•  - draft card burning is not protected
•  - local gov't may prohibit nude dancing
•  - burning cross is protected unless done with intent to threaten
•  - contribution limits in election campaigns are generally constitutional, but expenditure limits are not

• Incitement of illegal activity
• Obscenity and sexually-oriented
• Test:
•  - material must appeal to the prurient interest (shameful/morbid sex)
•  - material must be patently offensive under the law prohibiting obscenity (local standard)
•  - taken as a whole, material must lack serious redeeming artistic, literary, political or scientific value (national standard)

• OK - gov't zoning to regulate the location of adult bookstores and movie theaters
• Child pornography may be entirely banned (children must be used in its production)
• Not OK - punish private possession of obscene materials (except child porn)
• Gov't may seize assets of businesses convicted of violating obscenities laws
• Profane and indecent speech is generally protected by the 1st Amd. (Except public broadcasts and in school)

• False and deceptive adverts are not protected
• Risky but true commercial speech may be prohibited (attorney soliciting face-to-face; preventing professionals from using DBAs)
• Other commercial speech: intermediate scrutiny
• Must be narrowly tailored, not least restrictive alternative

If P is public official/running for office, may only recover on defamation if prove (C&C evidence) by proving falsity of the statement and actual malice (Knew or reckless)

• "Public concern" - P may recover on defamation if P can prove falsity in the statement and negligence by D. (punitive damages must show actual malice)
• "Private concern" - P may recover on defamation if P can prove falsity in the statement and negligence by D. (punitive damages do not have to show actual malice)

• intent'l infliction of emotional distress for defamatory speech must meet the defamation standards and
• cannot exist for speech otherwise protected by the 1st Amd.

• No liability for truthful reporting of information lawfully obtained from gov't
• No liability if media broadcasts tape of illegally intercepted call, if media did not participate in the illegality and is of public importance
• Gov't may limit its dissemination of information to protect privacy
• Speech by gov't employees while on the job is not protected
• Other gov't restrictions on content must meet strict scrutiny (ex. violent speech)

• gov't property that must be made available (parks, squares)
•  - Strict scrutiny applied to subject matter or view point based regulations
• Time, Place, and Manner regulations that serve an important gov't purpose and leave open adequate placed for communication 
• Narrowly tailored, but need not be least restrictive
• No discretion by city officials to set permit fees

• Gov't property that gov't could close to public but holds open
• Same rules apply as for public forums
• School that opens itself up

• gov't properties that the gov't opens up for limited to certain groups or dedicated to discussion of certain topics
• Can regulate speech but regulation must be reasonable and viewpoint neutral (OK- commercial ads, but no political ads)

• Gov't property that gov't constitutionally can and does close to free speech.
• Can regulate speech so long as regulation is reasonable and viewpoint neutral
• Ex. military bases, areas outside prisons and jails, sidewalks on post office property, airport

• No 1st amd right of access to private property for speech purposes
• (ex. Mall)

• Strict scrutiny
• To punish membership state must prove:
• (1) actively affiliated with the group
• (2) knowing of its illegal activities
• (3) with specific intent of furthering those illegal activities
• Laws requiring disclosure, where disclosure would chill membership, must meet strict scrutiny
• Laws prohibiting a group from discriminating are constitutional unless they interfere with an intimate association or expressive activity

• Free exercise clause cannot be used to challenge a neutral law of general applicability (native americans lost peyote case)
• gov't may not deny benefits to individuals who quit their jobs for religious reasons
• gov't may not hold a religious institution liable for choice it makes as to who will be its ministers

• Test (S.ecular E.ffect X.ess entangled):
• (1) law must have a secular purpose (NO- 10 commandments posted in public buildings)
• (2) effect must be neither to advance nor inhibit religion (multi-religious displays are ok)
• (3) must not be excessive entanglement with religion (gov't cannot pay teacher's salaries in religious schools to teach religion)
• Gov't cannot discriminate against religious speech or among religious unless strict scrutiny is met
• Gov't sponsored religious activity in public schools is unconstitutional (but religious student and community groups must have the same access to school facilities as non-religious groups)
• Government may give assistance to parochial schools, so long as it is not used for religious instructions.
• Gov't may be given vouchers which they may in turn use in parochial schools.

• The issue is either or both
• Does Congress have the authority to act?
• Has Congress violated a limit on its power?

• The issue is either or both
• Has POTUS/Exec brach exceeded the scope of executive powers?
• Has POTUS/Exec branch violated a limit on gov't power?

Does the federal court have the authority to hear the case?

Has the state/local gov't violated a limit on its power?

• Is there state action?
• If so: does it violate the Constitution?