Con Law Flashcards
(111 cards)
1
Q
10th Amendment
A
Powers not delegated to the United States, nor prohibited to the states, are reserved to the states.
- Limits Congress’s power to regulate the states
- NOT an independent grant of power to the states. Court almost never strikes down federal taxes / regulations on 10th Am grounds. Probably wrong answer.
** Congress does not have power to order states to adopt laws.
- Prohibits the federal government from adopting a statute that compels the states to enact or enforce a regulatory program
** Generally prohibits the federal government from regulating states alone, but states can be regulated through laws that apply generally.
2
Q
** 11th Amendment
A
A PRIVATE individual cannot sue a STATE for money damages or for injunctive relief in federal / another state court without consent of the state or congress
Prohibits FEDERAL COURTS from hearing most PRIVATE actions against STATE governments
- Includes actions where the state is a named party or where the state will have to pay retroactive damages
** Private parties can sue OFFICIALs to ENJOIN an officer from future conduct
** Congress can remove 11th Amendment protections Equal Protections grounds
3
Q
15th Amendment
A
The enabling clause of the Fifteenth Amendment allows Congress to adopt legislation protecting the right to vote from discrimination.
4
Q
** Burden of Proof
A
In all criminal trials, the government has the burden to prove all the elements of a crime beyond a reasonable doubt. However, this rule does not preclude the state from imposing a burden on the defendant to prove an affirmative defense, such as self-defense.
5
Q
Can a government employer fire an employee for speech-related conduct?
A
Matter of PUBLIC CONCERN (wide interpretation)
- PURSUANT to OFFICIAL DUTIES: can be punished/regulated
- NOT pursuant to official duties: the courts must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service
NOT on a matter of PUBLIC CONCERN: can be punished/regulated in the interest of mainting the work environment
6
Q
Can a private party sue a state official for damages?
A
Exception to the 11th Amendment; private parties may bring actions to enjoin an OFFICER from future conduct that violates the Constitution or Federal law
- Includes enjoining from enforcement of an unconstitutional law
7
Q
Can a state be sued in federal court?
A
Under the 11th Amendment, a federal court may not hear a PRIVATE party’s or a FOREIGN government’s claims against a state government
- State is named as a party
- State would have to pay retroactive damages
- Congress can remove immunity for actions created under the 14th Amendment
- Supreme Court has held that, for Eleventh Amendment purposes, a Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court
8
Q
** Can Congress delegate its powers?
A
Congress is free to delegate its authority, and here it has delegated its authority to the President.
9
Q
Can Congress impose conditions on states in order to receive Federal Funding?
A
Congress may “regulate” states through the spending power by imposing CONDITIONS on the grant of money to state governments.
- Even if Congress lacked the power to directly regulate the activity that is the subject of the spending program, attaching conditions on the spending does not violate the states’ 10th Amendment rights as long as the conditions are
1. Clearly stated
2. Related to the purpose of the program
3. Not unduly coercive
10
Q
Can one state government sue another state government?
A
Yes. The 11th Amendment does not bar actions by one state government against another state government
11
Q
** Commercial Speech
A
Regulation of truthful advertising of a lawful activity is valid only if it 1. Serves a SUBSTANTIAL government interest
- DIRECTLY advances that interest, and
- Is NARROWLY tailored to achieve that interest.
Commercial speech is protected by the First Amendment, but the Court tests regulation of commercial speech under a special test.
The Court FIRST asks whether the speech is about a lawful activity and is truthful and not misleading.
If these conditions are not satisfied, the speech has no protection.
If they are satisfied, the regulation will be valid only if it
- Serves a substantial government interest
- Directly advances that interest, and
- Is narrowly tailored to achieve that interest (that is, there is a reasonable fit between the means chosen and the ends sought).
12
Q
Commercial speech restrictions
A
If the speech regulated concerns a LAWFUL activity and is not misleading or FRAUDULENT, the regulation will be valid if it -
- Serves a SUBSTANTIAL government interest
- DIRECTLY advances the interest
- NARROWLY tailored to serve the substantial interest.
- Does not require LRM, but there must be a REASONABLE FIT between the legislation’s end and the means chosen
- The greater the restriction on speech, the less likely it will be deemed to be reasonable
- A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored
*If a state choses to make a product illegal, it can ban advertising of the products
13
Q
Constitutionality of a neutral law that happens to burden interstate commerce
A
If a state law that treats local and out-of-state interests alike the nonetheless burdens IC, it will be VALID unless the burden OUTWEIGHS the promotion of a legitimate local interest
14
Q
Content Based Restrictions / Viewpoint Regulations on Speech
A
PRESUMPTIVELY unconstitutional; STRICT SCRUTINY, rarely upheld
15
Q
Content-neutral speech regulations
A
Intermediate scrutiny; the government must prove that it is NARROWLY tailored to achieve an IMPORTANT or significant government interest (other than the suppression of speech)
- USSC will not uphold a total ban on a speech activity
- Must leave open channels of communication (leafleting is a uniquely good method)
But even content-neutral regulations can be struck down if they are vague or overbroad. A law is overbroad if it prohibits substantially more protected speech than is necessary, and it is vague if a person of common intelligence cannot tell what is prohibited
16
Q
Delegation of Legislative Power
A
Congress has broad discretion to delegate its legislative power; the Supreme Court will uphold almost any delegation of congressional power.
- Requires “intelligible standards”
- Can be delegated even under vague guidelines without creating an unconstitutional delegation
17
Q
Dormant Commerce Clause
A
State and local regulations that discriminate against IC to protect local interests are almost always violation of DCC.
1. Facial discrimination?
- If not…burden v. benefit
State/local laws cannot place undue burden on IC, foreign commerce. Regulation must treat economic interests from within the state no differently from economic interests outside of the state. Unconstitutional unless Congress gives it blessing.
- Economic protectionism: DIRECT discrimination against out-of-state businesses/consumers –> violates (unless Congress approves).
- Balancing test: reasoning for state regulation (10th Am) v. Commerce Clause
18
Q
Effect of a treaty
A
Properly ratified treaties are the supreme law of the land
- Conflicting STATE or LOCAL laws must yield
- Treaty v. Federal Law…last time time prevails
The U.S. Constitution, federal laws, and treaties are the supreme law of the land; state laws that are in conflict with the supreme law are invalid.
As stated above, the Constitution, federal laws, and treaties are the supreme law of the land. These can certainly give the President authority to invalidate state laws that interfere with federal objectives that are within the powers of Congress, such as objectives under the Commerce Clause
19
Q
Equal Protection
A
“The 14th Am equal protection clause prohibits STATES and subsidiary state governments and entities from treating SIMILARLY SITUATED PEOPLE in a DISSIMILAR manner without adequate JUSTIFICATION.”
Treating outsiders differently from residents. A law involving a suspect class/ quasi-suspect class or burdens a fundamental right is involved, nor is a involved
- STATES, 14th Am.
- Discrimination on FEDERAL LEVEL –> substantive due process 5th Am
20
Q
Establishment Clause
A
The 1st Am prohibits laws respecting the establishment of religion. Governmental action that does not contain a sect preference will pass muster under the Establishment Clause if passes the Lemon Test (PEE…yellow); requires all of -
- Secular PURPOSE
- Primary EFFECT neither advances or inhibits religion (incidental okay)
- No excessive ENTANGLEMENT (incidental okay)
- E.g., aid in the form of textbooks, transportation to and from school, and assistance for the administration of standardized tests is okay
* State action can be found if the government is significantly involved with the church
* Person asserting a violation of the Establishment Clause does not have to allege infringement of a particular religious freedom in order to have standing; it is enough that the person is directly affected by the government action challenged
Other approaches
- Neutrality
- Coercion
- Endorsement of religion
- History and tradition
21
Q
Free Exercise Clause
A
The First Amendment provides that the free exercise of religion shall not be abridged. The amendment prohibits the government from outlawing religious BELIEFS / cannot outlaw conduct merely because it is religious unless NECESSARY to achieve a COMPELLING interest (strict scrutiny)
- Absolute protection for religious beliefs, as long as they are SINCERE.
- Cannot be used to challenge a NEUTRAL law of GENERAL application, no matter how much it burdens practices, as long as it is not designed/INTENDED to burden religious freedom, e.g., just happens to sweep up practice of specific faith. State is not required provide religious exemptions from the statute.
- Clergy can hold elected office
- Irrelevant whether the religious practice interfered with is a core religious belief or merely a minor belief
22
Q
** Government Nativity Scene
A
If a government’s holiday display includes religious symbols (a nativity scene or a menorah) as well as other holiday decorations (a Christmas tree or a Santa Claus figure), the courts will allow the display. If the display includes only symbols of a particular faith, it will violate the Establishment Clause because it has a religious effect (it “endorses” religion).
23
Q
If the government denies a fundamental right to everyone…
If the government denies a fundamental right to only some people…
A
Substantive due process, not equal protection.
Analyze under equal protection + substantive due process (for essays)
24
Q
** Ineffective Assistance of Counsel
A
To obtain postconviction relief for ineffective assistance of counsel, the claimant must show her counsel’s performance was deficient and that, but for the deficiency, the outcome of the trial would have been different.
- The standard is “reasonable probability”
25
Intermediate scrutiny review
STATE must show law is SUBSTANTIALLY related to an IMPORTANT government interest.
- Gender
- Legitimacy
26
Limited Public Forum or Nonpublic Forum
Other than streets, sidewalks, parks, and designated public forums, MOST public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum. The government can regulate speech in such a forum to reserve the forum for its INTENDED USE.
Regulations will be upheld as long as they are
1. Viewpoint neutral
2. Reasonably related to a legitimate government purpose.
\* The citizen would have the burden of proving that there was no reasonable basis for the statute
27
\*\* Obscenity
Not protected speech; government does not need a specific compelling interest to ban it.
A description or depiction of sexual conduct that, taken as a whole, by -
1. Average person in the contemporary COMMUNITY/STATE; prurient interest in sex/portrays sex in a PATENTLY OFFENSIVE way
2. NATIONAL reasonable person standard; does not have serious literary, artistic, political, or scientific VALUE.
≠ mere nudity
28
\*\* Overbroad speech regulation
A regulation of speech will not be upheld if it is overbroad, i.e., prohibits SUBTANTIALLY more speech than is necessary
- A regulation punishing a substantial amount of protected speech judged in relation to its legitimate sweep is facially invalid and cannot be enforced against anyone UNLESS the court has limited construction of the regulation to remove the the threat to protected speech
29
Privileges and Immunities
Privileges and Immunities Clause of Article IV prohibits STATES from discriminating against NON-RESIDENTS for important economic interests or civil liberties. INVALID unless the state has a SUBSTANTIAL JUSTIFICATION and there are NO LRM.
- E.g., protects OUT of state citizens from economic discriminations
- There must be discrimination
- C.f., NEW residents, Priv OR Immun
- Does not apply to CORPORATIONS / ALIENS
30
Privileges or Immunities Clause
The 14th Amendment Privileges OR Immunities Clause prohibits states from denying their citizens the privileges or immunities of NATIONAL citizenship
\*\* Residency requirements
- The right to interstate travel (includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state)
- Right to petition Congress for redress
- Right to vote
- Right to government benefits
31
Procedural Due Process
The Due Process Clauses of the 5th Am (federal) and 14th Am (states) provide that a person has a right to a fair process when the government deprives them of life, liberty, or property. Requires -
1. NOTICE
2. HEARING
- -BALANCING TEST; interest being taken away v. risk of error if no hearing is granted.
3. NEUTRAL decision maker
- Must be intentional / reckless government action
32
\*\* Property Interest in Job
A government employee will have a property interest in continued employment only if the employee has a legitimate claim to (as opposed to a mere expectancy of) continued employment. To have such a claim, there must be a CONTRACT, CLEAR PRACTICE, MUTUTAL understanding, etc., that the employee can be terminated only for CAUSE.
- E.g., If someone in a position of authority promised that the teacher could be dismissed only for cause and the teacher relied on this promise by moving, a case can be made that the teacher had a legitimate claim to continued employment despite the employee handbook
- A public employee who is subject to removal only for "cause" has a property interest in her job; generally must be given
1. Notice of the charges against her that are to be the basis for her job termination
2. A pre-termination opportunity to respond to those charges
- Due process does not necessarily entitle to a pre-termination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient
33
Rational basis review
PLAINTIFF must show law is not RATIONALLY related to LEGITIMATE government interest
- A law is presumed to be valid
- Does does not target a suspect classification, does not burden a fundamental right
34
Requirements for certification by the USSC
The Supreme Court may grant certiorari to review a case from the HIGHEST court in a state that can render an opinion on the matter if a state statute's validity is called into question under the FEDERAL Constitution
- I.e., the Supreme Court will hear a case from a state court only if the state court judgment TURNED ON federal grounds....
- May decide the federal issues, but cannot rule on the state law issues
- Will refuse to hear the case only if the STATE ground is adequate by ITSELF to support the decision as well as independent, so that the Court's review of the federal ground for the decision would have NO EFFECT on the OUTCOME of the case, e.g., state court had found the law invalid under both the state and federal Constitutions
35
\*\* Residency Requirements
## Footnote
The right to travel is protected by the Fourteenth Amendment, and it includes the right of newly arrived citizens to enjoy the same privileges as are enjoyed by other citizens of the state.
- The law that gives a benefit to long-term residents (people who have been residents more than a year) and soinfringes on the right to travel.
36
Standard for state action via private entity
Private action will constitute state action when
1. Private actor is performing a TRADITIONAL AND EXCLUSIVE public function or
2. The state is SIGNIFICANTLY INVOLVED in the private action
"Significantly involved," mere acquiescence by the state to private conduct is not enough
- States need not outlaw discrimination...just forbidden to facilitate, encourage, or authorize it
37
Standing
Standing requires a concrete stake in the outcome of a controversy which includes an injury in fact.
- Abstract injury is not enough; the plaintiff must show that he has sustained or is immediately in danger of sustaining a particularized and concrete injury as the result of the challenged official conduct.
- The injury or threat of injury must be real and immediate, not conjectural or hypothetical
- Determined at the BEGINNING of a lawsuit
1. PRESENT injury in fact (economic, ideally. E.g., entered into contracts)
2. Causation (sue party that caused harm)
3. Redressability (court needs to be able to make you whole)
38
State taxation of interstate commerce
A state tax is valid under the Commerce Clause if -
1. Not preempted by federal law
2. The tax does not DISCRIMINATE against interstate commerce
3. There is a substantial NEXUS between the ACTIVITY taxed and the taxing STATE
4. The tax is FAIRLY apportioned
5. The tax fairly relates to services or BENEFITS provided by the state
39
\*\* State's Power to Tax the Federal Government
A state tax levied directly against the property or operation of the federal government without the consent of Congress is invalid.
- However, nondiscriminatory, indirect taxes on the federal government or its property are permissible if they do not unreasonably burden the federal government
- Because this tax is not levied directly against the government, but rather against the provider of a service that the government is obtaining, and is levied on all communications lines in the state, the tax is valid
Both the federal government and the state government have the power to tax, but the federal law is supreme in this area. (C) is wrong because not every state tax that burdens the federal government is invalid. A nondiscriminatory tax on a service provided to the federal government by a private entity does not appear to be an unreasonable burden on the operation of the federal government. (D) is wrong because the fact that interstate commerce is involved does not invalidate the tax. Power over commerce is concurrent, belonging to both the states and the federal government. While federal law is supreme in the area of interstate commerce, state legislation that affects interstate commerce is not automatically invalidated.
40
Substantive Due Process
Guarantees that laws will be reasonable and not arbitrary, both as to rights enumerated by the Constitution and unenumerated rights.
- If a FUNDAMENTAL RIGHT is limited, law or action is evaluated under STRICT SCRUTINY
1. All First Am rights
2. Right to interstate travel (and be treated equally there)
- Durational residency requirements
3. Privacy-related rights
- Marriage
- Procreation
4. Voting
- All else, rational basis
41
The Commerce Clause
As part of its power to regulate interstate commerce, Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce.
- Congress has absolute PLENARY POWER to regulate INTERSTATE COMMERCE, commerce with foreign countries.
\*RATIONAL BASIS; must be rationally related to interstate commerce
- "CIA "
1. Channels
- Telephone and similar communications devices
2. Instrumentalities
- Transportation that constitutes IC
3. Activities w/ substantial effect on IC
\*\* Alien or corporation may be a plaintiff
42
The First Amendment
The first amendment generally prohibits the government from restricting the CONTENT of speech unless the GOVERNMENT can prove that the restriction is NECESSARY to achieve a COMPELLING government interest
Gives a person the right to say what he wants, and also prohibits the Government from requiring persons to say what they do not want to say.
43
The General Welfare Clause
Congress has the power to lay taxes under Article I, Section 8, and spend under the 16th Am. CONGRESS can TAX and SPEND for the GENERAL WELFARE. A congressional tax measure will be upheld if it
1. Bears some REASONABLE relationship to revenue production or
2. If Congress has the POWER to regulate the taxed activity, e.g., interstate commerce
- Congress's strongest power
- Separate from the Commerce Clause!
- Cannot be UNDULY COERCIVE
- Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers
\* The spending power does NOT give Congress power to PASS LAWS for the general welfare, even when combined with the Necessary and Proper Clause. No non-spending regulations!
44
\*\* Unprotected speech
- Incitement of lawless action; does not apply to abstract lawlessness, must be IMMINENT
- Fighting words
- Obscenity
45
Validity of a state Ad Valorem Tax
Tax on the assessed value of some property
- Commodities: valid only if property no longer in state commerce
- Instrumentalities: valid if instrument has "taxable situs" in state and tax is fairly apportioned. Full tax by domiciliary state valid unless taxpayer can prove a defined part has acquired taxable status elsewhere
46
Validity of a state Privilege, License, Franchise, and Occupational Tax
Tax placed on doing some activity
Valid if
1. Substantial nexus to taxing state
2. Fairly apportioned
3. Does not discriminate against IC
4. Fairly relates to services provided by the state
47
Validity of a state Sales Tax
Tax on sales of goods consumed with the state
- Generally valid if there is a SUBSTANTIAL NEXUS to the taxing state
- Properly APPORTIONED (if more than one state can tax the sale)
48
Validity of a state Use Tax
Tax on goods purchased outside the state but used within in
- Valid unless higher than sales tax
49
What determines the USSC's jurisdiction?
Article III explicitly allows Congress to make exceptions to the Supreme Court's appellate jurisdiction without qualification.
50
What if a law has a discriminatory effect?
The mere fact that legislation or governmental action has a discriminatory EFFECT is not sufficient to trigger strict scrutiny.
- There must be INTENT to discriminate on the part of the government. To establish a racial, national origin, or ethnicity classification, the party challenging the law must show (any of)
1. The racial classification appears in the law itself (FACIAL discrimination)
2. The law was APPLIED in a purposefully discriminatory manner, or
3. The law was enacted or maintained for a discriminatory PURPOSE
51
When can states directly discriminate against out of state business?
1. Directly authorized by congress
2. State (or city) as MARKET PARTICIPANT; can do business with whoever they want unless Congress says NO
- Although the Commerce Clause generally prohibits states from discriminating against out-of-state businesses to benefit local economic interests, does not prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., buying or selling products, hiring labor, giving subsidies, etc.).
- E.g., Can constitutionally charge whatever prices it desires to whomever it desires
52
When will a private individual owe the same rights as the government?
Private entity
1. Is performing a TRADITIONAL and EXCLUSIVE PUBLIC FUNCTION
- Running an election
- Running a company town
- Education ≠ EPF
2. Took actions with significant state INVOLVEMENT
- Enforcement of private action involves use of the courts, e.g., restrictive covenant or peremptory challenge
- Private entities are intertwined with government entities
- State regulation of an industry ≠ state action
- Licensing, providing essential services ≠ state action
53
13th Amendment
The Thirteenth Amendment prohibits slavery
- The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any PRIVATE racially discriminatory action that can be characterized as a badge or INCIDENT of SLAVERY
- E.g., specifically deals with discrimination against African-Americans
54
14th Am Due Process Clause
The Fourteenth Amendment Due Process Clause makes many of the provisions of the Bill of Rights applicable to the states.
55
8th Am
Cruel and unusual punishment
56
Advisory opinions
STATE courts CAN issue advisory opinions; federal courts do not.
- Is a Fed Ct decision capable of being ignored by another body? Advisory
57
Analysis for state economic regulation
Does the statute
1. Conflict with federal legislation
- Congress has not adopted regulations concerning the subject matter or preempting the entire area of regulation
2. Violate the Commerce Clause
- Must not discriminate against IC or unduly burden it
If the regulation is discriminatory, it will be invalid unless
1. It furthers an important, noneconomic state interest AND there are no reasonable nondiscriminatory alternatives
2. The state is a market participant
If the regulation does not discriminate but does burden IC, invalid if burden on interstate commerce outweighs the legitimate local benefits produced by the regulation
58
Appointments Clause
Permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments
- ENFORCEMENT is an executive act; therefore, Congress cannot appoint members of a commission that exercises enforcement powers (e.g., prosecute violations)
- A duly appointed commission has the power to make rules and regulations governing the subject matter for which it is appointed
59
Bill of attainder
Bill of attainder is a legislative act that inflicts punishment without a judicial trial on INDIVIDUALS who are designated either by name or in terms of past conduct.
60
Can Congress subpoena the President?
Congress can subpoena the President’s personal records, but it needs to establish that the subpoena advances a legitimate legislative purpose
61
Can the President decline to spend funds specifically appropriated by Congress?
The Supreme Court has ruled that there is no constitutional basis for the President to "impound" (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated, regardless of Congress's reason for making the appropriation.
- The President has no "legislative" power in internal affairs, and has a duty under Article II to "see that the laws are faithfully executed." Must carry out the Congressional directive.
- Congress clearly has the power to spend to "provide for the common defense and general welfare."
- The President's authority is very limited when he is taking action in the domestic arena against the express will of Congress.
62
Congress's Power to Investigate
Congress's power to investigate is limited to matters on which it can LEGISLATE (enumerated power under Article I, Section 8)
- Congress can question a member of the executive branch concerning his duties, and he is not immune from prosecution
63
Contracts Clause
STATES cannot retroactively invalidate/substantially impair existing contracts UNLESS law serves an IMPORTANT and LEGITIMATE government interest and is NARROWLY and REASONABLY TAILORED to promote that interest.
- State argues 10th Am, which usually trumps the Contracts Clause
The Contract Clause prohibits STATES from enacting any law that retroactively impairs contract rights.
- Does not affect contracts not yet entered into
64
Discrimination against resident aliens
- CONGRESS can discriminate; RATIONAL basis
- STATE subject to STRICT scrutiny, unless IMPORTANT GOVERNMENT FUNCTION, then RATIONAL basis
65
Discrimination by the state v. private party
14th Amendment = state action
- Congress can directly regulate under its 14th Am enforcement power
13th Amendment = private action
66
Does Congress have the power to legislate for the general welfare?
NO, Congress does not have the power to legislate for the general welfare; there is no federal police power
- Congress has the power to TAX / SPEND for the general welfare
67
Does the President have an emergency power to protect US citizens?
President's emergency power to protect United States citizens is unclear.
- While he has power to act concerning foreign nations, it is unclear whether he could "legislate" concerning internal affairs merely because he thought that United States citizens needed protection
68
Double Jeopardy
Under the Double Jeopardy Clause, a defendant may not be retried for the SAME OFFENSE once jeopardy ATTACHES.
- Does not apply to trials by separate sovereigns (federal, state, foreign)
- Does not require an acquittal for the second case to be prohibited
- Retrial may occur after a hung jury, but it may not occur after a conviction
- Attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense
\*\* Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.
69
Ex post facto law
CRIMINAL law being applied retroactively
70
Executive agreements
Signed by the president and the head of a foreign country. Do not require consent of Senate.
Trumped by
1. US Constitution
2. Treaties and Federal Statutes
71
Executive Immunity
Executive immunity protects the President from civil liability.
72
Foreign Commerce
Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments.
- The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce.
- Distinct from IC!
73
Free speech in public schools
USSC: "public school students do not shed their constitutional rights at the door."
- Public schools generally are not public forums
- Because the public school setting is special, 1st Am rights of public school students may be REASONABLY RESTRICTED to enable schools to accomplish their mission of -
1. Educating Students
2. Keeping them safe
Cannot be required to say the pledge against their beliefs
74
Freedom of the press
The press has a right to publish information about a matter of public concern.
- Right can only be restricted by NARROWLY tailored sanction designed to further a state interest of the highest order.
- Applies even if info has been obtained unlawfully
75
Gender classifications
The Court will apply an INTERMEDIATE standard and strike the action unless the government proves, by an EXCEEDINGLY PERSUASIVE justification, that the action is SUBSTANTIALLY related to an important government interest.
- Generally upheld classifications benefiting women that are designed to remedy past discrimination against women, because remedying past gender discrimination is an important government interest
- Interest must be genuine and not hypothesized for litigation
- May not rely on overbroad generalizations / stereotypes about men and women
- Most likely invalid: gender based death benefits, peremptory strikes, alimony for women only, discriminatory minimum drinking age
- Most likely valid: rape laws, all male draft, requiring fathers to prove parentage
76
General federal police power
Only over D.C., military bases, federal lands
77
How can Congress bar public racial discrimination?
Commerce Clause; in the aggregate, basically all economic activity impacts IC
78
Intergovernmental Immunity
State and local governments cannot tax or regulate the activities of the federal government.
79
Is education a fundamental right?
The Supreme Court has not held education to be a fundamental right under the Due Process Clause
80
Is the right to strike a fundamental law?
The right to strike has not been determined to be a fundamental right by the Supreme Court
81
Judge's role for incompetent defendant
If it appears to the judge that the defendant might be incompetent, judge has a constitutional OBLIGATION to conduct further inquiry and determine whether in fact the defendant is incompetent, regardless of whether the defendant is representing himself or is represented by an attorney.
- Judge’s failure to raise the issue/request a determination of competency is not a waiver of the issue on appeal
82
Liberty interest
Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution
- E.g., freedom of speech
- Although corporal punishment may involve a liberty interest, no hearing is required prior to inflicting such punishment; the possibility of a common law action in tort is sufficient procedural protection.
83
Mootness
```
A federal court will not hear a case unless there is a REAL, LIVE controversy at ALL stages of the proceeding, not merely when the case is filed.
- A CLASS ACTION is not moot, and the class representative may continue to pursue it, even if the representative's own controversy has become moot, if other claims in the class are still viable
```
84
Most speech restrictions
Intermediate scrutiny
85
Parens Patriae
The doctrine of parens patriae allows the state to stand in the shoes of a parent, but even a parent may not impose any punishment he sees fit (e.g., a parent may not break a child's arm as punishment for stealing).
86
Postal monopoly
Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads.
- This power grants Congress a monopoly over the delivery of mail
- No other system for delivering mail, public or private, can be established absent Congress's consent
87
Power to control federal employees
President has authority to enact some regulations for federal employees. The President's PLENARY power to control executive employees is limited by the Constitution
- Cannot violate the First Amendment or other constitutional guarantees
88
Preemption
A state law may fail under the Supremacy Clause even if it does not DIRECTLY conflict with a federal statute or regulation if it
1. INTERFERES with the achievement of a federal objective or
- OVERLAP between federal/state law. Does not require actual CONFLICT (Supremacy Clause)
- States can give citizens GREATER protections than federal law authorizes, unless Congress says no.
2. The federal regulations OCCUPY the entire field
- Did CONGRESS INTEND to occupy the field?
- Presumes that Congress did NOT intend to occupy; burden on Congress to show they did.
- Where the federal laws are COMPREHENSIVE or a federal AGENCY IS CREATED to oversee the field, preemption will often be found
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President's power to pardon
Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, i.e. FEDERAL OFFENSES, except if federal official who has already been IMPEACHED by Congress.
- Can pardon Federal official who has been INDICTED, is a FUGITIVE
- Must be FEDERALLY related (federal charge, threatened with federal charges)
- STATE offenders / those held in state custody are pardoned by state governors.
- Blanket pardons are valid
- May pardon offenses that occurred before the President took office
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Prior restraints on speech
Usually not allow. Valid for things like national security.
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Private citizen discriminating
Not a CONSTITUTIONAL remedy; instead, statutory remedy.
- UNLESS government function/government is significantly involved in the deprivation such that it is state action
- Incidental involvement is not enough, e.g., granting land
- 13th Amendment against servitude applies to EVERYONE (including private citizens)
- Under the commerce power, Congress may prohibit private discrimination in activities that might have a substantial effect on IC
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Property clause
The Property Clause (Article IV, Section 3) gives Congress the power to "make all needful rules and regulations respecting the territory or other property belonging to the United States." FEDERAL PROPERTY.
- Acquire and dispose of all kinds of property
- Protect its property
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Requirements for the valid passage of a law
## Footnote
The enactment of laws by Congress requires passage of the law in both houses (bicameralism) and approval of the law by the President (that is, the presentment requirement) or an override of a presidential veto.
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Right v. privilege
They are the same! Answers turning on this distinction are a red herring
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Separate but equal
Not valid under Equal Protection for race
- Probably for other classifications
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Speech regulations in public forums
While the First Amendment protects the freedoms of speech and assembly, the government may reasonably regulate speech-related conduct in public forums through CONTENT-NEUTRAL TIME, PLACE, and MANNER regulation. Must --
1. Be NARROWLY tailored to serve an important government interest
2. Leave open alternative channels of communication
Also cannot be
- Overbroad
- Vague
- Give unfettered discretion
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State v. Federal classifications of persons
Federal government action involving classifications of persons, the Supreme Court, using the Due Process Clause of the 5th Amendment
Same standards that it applies to STATE actions under the 14th Amendment Equal Protection Clause
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Statutes that attempt to punish fighting words
Usually over-broad, will be invalid
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Takings
If a government regulation denies a landowner ALL economic use of his land, the regulation generally will constitute a "taking" requiring the payment of "just compensation" under the 5th Amendment.
- Regulations that merely DECREASE the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property. The court will consider -
1. The social goals sought to be promoted
2. The diminution in value to the owner
3. Whether the regulation substantially interferes with distinct, investment-backed objectives
\*The government may only exercise its taking power for a public use, any use will be deemed "public" if it is RATIONALLY RELATED to a legitimate public purpose.
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Tax applicable only to the press
Press and broadcasting companies can be subject to general business taxes, but a tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification
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Taxes and the First Amendment
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Although people (and corporations) cannot generally be forced to convey a message with which they disagree, they can be forced to pay taxes that fund messages with which they disagree
- The amendment does not violate the First Amendment because it does not compel speech. It only compels paying taxes, which are then used to fund government speech.
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Taxpayer Standing
People have standing to challenge CONGRESSIONAL spending measure on 1st Amendment ESTABLISHMENT CLAUSE grounds
- E.g., federal funding to religious school
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The Necessary and Proper Clause
Gives Congress the power to adopt laws necessary and proper to enable any branch of the federal government to execute its powers
- Cannot work standing alone, must work in conjunction with other federal power...answer choices that just say this are wrong!
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The Supremacy Clause
A valid act of Congress supersedes any state or local action that actually conflicts with the federal rule.
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Third Party Standing
Generally, cannot assert the rights of third parties unless
1. Seller of goods/VENDOR: if law adversely affects the rights of her CUSTOMERS
- Need NEXUS b/w party bringing lawsuit and people whose rights are being protected
- Best nexus/link is ECONOMIC
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What if a non-economic state law has an impact on interstate commerce?
There is an exception to the Commerce Clause for state action that furthers an IMPORTANT, NON-ECONOMIC state interest (e.g., health or safety)
- Generally, state professional licensing laws fall within the exception.
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When may the USSC review a decision from a state court?
Requires -
1. FINAL judgment from state court
2. Judgment must come from HIGHEST state court
3. Substantial FQ being raised
4. Decision by the state court did not rest on adequate/INDEPENDENT state grounds
- E.g., illegal on state constitutional grounds, states have final say on their laws
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Who can enter into treaties?
The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount.
- Even as to foreign relations that require congressional consent, the President's powers are much broader than in the realm of internal affairs
- No significant judicial control has been exercised over such declarations. Very broad power
- Constitution only requires the President to obtain the advice and CONSENT of the SENATE to enter into treaties; it does not require him to obtain Senate consent to VOID a treaty.
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Who has the power to select ambassadors?
Article II, Section 2 provides that the PRESIDENT shall nominate, and with the advice and consent of the SENATE shall appoint, ambassadors and other officers of the United States.
- Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.
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Who has the power to tell troops where to go?
The President
- Congress cannot tell troops where to go; PAYS for the military.
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\*\* Executive Agreement v. State Law
Executive agreements with other governments fall within the President's broad power over foreign relations and will supersede conflicting state laws. Although executive agreements are not expressly provided for in the Constitution, they have become institutionalized in practice. Because they are not ratified by the Senate as treaties are, they cannot override a valid federal statute, but they are supreme over conflicting state laws to the same extent as a treaty
