Constitution Flashcards
1
Q
Eight areas of conlaw:
A
- Federal judicial power (15%); 2. Federal legislative power (10%); 3. Federal executive power (10%); 4. Federalism (20%); 5. The structure of the Constitution’s protection of individual liberties (8%); 6. Individual liberties (8%); 7. Equal Protection (8%); 8. First Amendment (20%)
2
Q
Where are the powers of the federal courts defined?
A
Article III
3
Q
Article III defines federal court power using what two words?
A
Cases and Controversies
4
Q
The Supreme Court has interpreted the words, Cases and Controversies, how?
A
As giving rise to a series of limits on the federal judicial power. These limits are sometimes called justiciability doctrines.
5
Q
What are the four justiciability doctrines that must be met for any federal court at any level to hear the case?
A
- Standing; 2. Ripeness; 3. Mootness; 4. Political Question Doctrine
6
Q
Standing: defined
A
Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
7
Q
In order for a plaintiff to have standing, four requirements must be met:
A
- Injury; 2. Causation and redressability; 3. No third party standing; 4. No generalized grievance.
8
Q
Injury: Plaintiff must allege and prove _____.
A
that he or she has been injured or imminently will be injured.
9
Q
Injury requirements:
A
- Plaintiffs only may assert injuries that they personally have suffered (Sierra Club v. Morton; standing to challenge ski resort being built by Disney when members walked through the area being targeted);
- Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm (City of Los Angelos v. Lyons; could not show that it was likely that he would be harmed (choked down when getting traffic ticket) in the future so lacked standing).
10
Q
MBE standing strategy if question asks for plaintiff with “best” standing:
A
Look for: 1. Personal injury; 2. economic loss
11
Q
Causation and redressability: defined
A
The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury.
12
Q
The Supreme Court has frequently said that the core of Article III is what?
A
That the federal courts cannot issue advisory opinions.
13
Q
What is an impermissible advisory opinion?
A
If a ruling for the plaintiff would have no effect, it is then just an impermissible advisory opinion.
14
Q
What is redressability?
A
A remedy for a harm.
15
Q
The best way to achieve redressability is how?
A
To know that the defendant is the CAUSE of the harm. (Case-taxpayers against IRS for giving tax exempt status to hospital even though it refused to give free health care to indigents. No standing because plaintiffs could not prove that IRS caused the harm. The hospital might still deny care to indigents even without the tax exempt status.)
16
Q
Third party standing: general rule
A
No third party standing allowed. A plaintiff cannot assert claims of others, of third parties, who are not before the court.
17
Q
A plaintiff who meets ALL OF THE OTHER STANDING REQUIREMENTS, may have standing for a third party when:
A
- Third party standing is allowed if there is a close relationship between the plaintiff and the injured third party (usually the one focused on on the bar exam); 2. Third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights; 3. An organization may sue for its members, if (a) the members would have standing to sue; (b) the interests are germane to the organization’s purpose; (c) neither the claim nor relief requires participation of individual members.
18
Q
Example of where third party standing is allowed if there is a close relationship between the plaintiff and the injured third party:
A
Doctor-patient relationship: Doctor’s bring suit against laws that restrict abortions. Laws that restrict abortions cause an injury to the doctors–a loss of business. But unlikely that courts would allow them to bring a case under that. So they bring stronger constitutional claims on behalf of their patients. This is why it was surprising a few years ago when the court would not allow a father to sue on behalf of his daughter to challenge the words “under god” in the pledge of allegiance in public schools. The father did not have legal custody of the daughter.
19
Q
Generalized grievances: general rule
A
No generalized grievances are allowed. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.
20
Q
Exception to generalized grievance rule:
A
Taxpayers have standing to challenge government expenditures of MONEY pursuant to federal statutes as violating the Establishment Clause.
Exception comes from Flast v. Cohen where taxpayer sued because government giving money to parochial schools. Supreme court said that Establishment Clause was meant to be a limit on Congress’s spending, so the taxpayer had standing. But in the years since, the Supreme Court has consistently narrowed the ruling. 1981 case where federal government giving property to private school. No standing because not a grant of money, but a grant of property. Faith based initiative giving money from general executive revenue to churches, mosques, and synagogues. Taxpayers don’t have standing to challenge expenditures of money from general executive revenue. 2011, Arizona giving tax credits to people who gave money to school tuition. Taxpayers have no standing to challenge tax credits.
21
Q
Ripeness: defined
A
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
22
Q
Tip: whenever you see a question saying that plaintiff is seeking a declaratory judgment, look at what?
A
RIPENESS. The usual way of challenging a law is to violate it, be prosecuted, then challenge the validity of the law. But sometimes people don’t want to have to violate the law in order to challenge it. They want a declaratory judgment. But whenever a federal court issues a declaratory judgment they have to make sure there really is a case or controversy. This is when ripeness usually arises.
23
Q
The Supreme Court says that in assessing ripeness, it will look at 2 criteria:
A
- The hardship that will be suffered without preenforcement review; The greater the hardship the plaintiff will suffer without preenforcement review, the more likely it is that the federal court will hear the case.
- The fitness of the issues and the record for judicial review. This means, does the federal court have before it all that it needs to decide this issue? Is there a reason that the court should wait before hearing the case?
CASE: Food and drug administration adopted a rule that all prescription drugs had to include the generic name on label. The drug companies sued the FDA. The FDA said they needed to wait until someone violated the rule before they could bring a claim. Supreme court said the hardship would be great on the drug companies because if they did not comply with the rule, criminal penalties might be issued. If they complied with the rule, they wasted millions of dollars if it were struck down. With regard to the fitness of the issues and the record for review, the Supreme Court said this is purely a question of law and nothing would be gained by waiting. So case was found ripe for review.
24
Q
Mootness: defined
A
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.
A plaintiff must present a live controversy, an ongoing injury, at all stages of the federal court proceedings. If anything happens while the case is pending to end the plaintiff’s injury, the case must be dismissed as moot.
25
Exceptions to the mootness requirement:
1. Wrong capable of repetition but evading review; there must be a chance that it will happen to that plaintiff again. Think of Roe v. Wade. Roe challenged Texas statute prohibited abortion. But by the time her case got to the Supreme Court, she was no longer pregnant. Texas moved to dismiss for mootness. Court said no.
2. voluntary cessation; if the defendant voluntarily halts the offending practice, but is free to resume it at any time, the case will not be moot. (Example: lawsuit filed against an employer using a discriminatory test. Employer agrees to not use the test, but can use it whenever wants. So not dismissed as moot.)
3. class action suits. If the named plaintiff's claim becomes moot, a class action will not be dismissed so long as one member of the class has an ongoing injury.
26
Political Question doctrine: defined
The political question doctrine refers to constitutional violations that the federal courts will not adjudicate.
27
Political questions include:
1. The "republican form of government clause"
2. Challenges to the President's conduct of foreign policy;
3. Challenges to the impeachment and removal process;
4. Challenges to partisan gerrymandering.
28
What does "the republican form of government clause" refer to?
A provision in Article IV, Section 4 of the Constitution which says that the United States shall guarantee to each state a republican form of government. This has nothing to do with political party. A republican form of government is where the people will elect representatives and the representatives will then make the laws.
29
Challenges to the President's conduct of foreign policy refers to what?
EXAMPLES:
1. During 60s and 70s, challenges were brought regarding the Vietnam War, claiming that the President was waging war without a Congressional declaration of war. Invariably dismissed as political questions, because they challenged the President's conduct of foreign policy.
2. In 70s, Jimmy Carter rescinded a treaty with Taiwan as part of recognizing the People's Republic of China. Arizona Senator Barry Goldwater sued saying that just as the Senate has to approve the making of a treaty, so it should have to approve the recission of a treaty. Dismissed because a challenge to the President's foreign policy conduct and was therefore a political question.
30
Challenges to the impeachment and removal process refers to what?
Holding of a 1993 Supreme Court case titled Nixon v. US; Walter Nixon was a federal district court judge of Mississippi who was recommended for impeachment by the House of Representatives. Then the Senate put together a committee to look at the matter and to make a recommendation to the entire body. Nixon challenged that procedure and said that the entire Senate should try him.
31
Challenges to partisan gerrymandering refers to what?
Partisan gerrymandering is where the political party that controls the legislature draws election districts to maximize seats for that party.
2004 and 2006, the Supreme Court made it clear that challenges to partisan gerrymandering is a political question and nonjusticiable.
32
How do virtually all cases come to the Supreme Court?
By writ of certiorari. The Supreme Court has complete discretion as to whether to take the case. If 4 justices vote for certiorari, the court hears it.
33
What kinds of cases come to the Supreme Court by writ of certiorari?
1. All cases from state courts come to the Supreme Court by writ of certiorari.
2. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari.
34
Supreme Court review by appeal:
Appeals exist only for decisions of three-judge federal district courts. When the statutes providing for Supreme Court jurisdiction provide for review by appeal, as opposed to by certiorari, the Supreme Court is required to take the case, if it was requested to do so. However, in 1988, Congress eliminated almost all appeals to the Supreme Court, except for where in some statutes that require that cases be heard by a three judge federal district court, if appealed the case skips the court of appeal and goes right to the Supreme Court. The Supreme Court is required to take the case.
35
When does the Supreme Court have original AND exclusive jurisdiction?
For suits between state governments.
36
What is the final judgment rule?
Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, of a United States Court of Appeals, or of a three-judge federal district court.
The final judgment rule is just a reminder that there generally is no interlocutory review in Supreme Court.
37
When can't the Supreme Court review a state court decision?
For a Supreme Court to review a state court decision, there must not be an independent AND adequate state law ground of decision.
If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court's reversal of the federal law ground (the only one the Supreme Court can decide) will not change the result in the case, the Supreme Court cannot hear it.
38
Rules on lower federal court review:
1. In order for a lower federal court to hear a case, all the justiciability requirements must be met; 2. State governments cannot be sued in federal or state courts. 3. Abstention.
39
Why can state governments not be sued in federal or state courts or federal agencies?
The principle of sovereign immunity under the Eleventh Amendment bars suits against states in federal court.
40
Four situations where state government can be named as a defendant:
1. Waiver is permitted; 2. States may be sued pursuant to federal laws adopted under section 5 of the 14th Amendment. Congress cannot authorize suits against states under other constitutional provisions; 3. The federal government may sue state governments; 4. Bankruptcy proceedings.
41
What is the rule regarding waiver of sovereign immunity?
A state may waive it's sovereign immunity and allow suits. However, the waiver must be explicit. The state government must expressly consent to be sued.
42
Why can states be sued pursuant to federal laws adopted under the 14th Amendment?
Because the 14th Amendment came after the 11th Amendment and the 14th Amendment was intended to be a limit on state sovereignty.
Example: Title VII; Civil Rights Act of 1964; prohibits employment discrimination based on race, color, religion, sex, and national origin. Title VII was adopted under the 14th Amendment. But Federal Age Discrimination in Employment Act was adopted under the Commerce Clause and cannot be used to sue a state government.
43
Even when the state government can't be sued, state officers may be sued when:
1. state officers may be sued for injunctive relief; 2. state officers may be sued for money damages to be paid out of their own pockets (individual capacity where officer is personally liable); 3. state officers may not be sued if it is the state treasury that will be paying retroactive damages (damages that compensate for past injury).
44
What is abstention:
Federal court has jurisdiction and all the justiciability factors are met, but the Federal court abstains from exercising its power.
The only abstention doctrine you need to know for the bar exam is: Federal courts may not enjoin pending state court proceedings.
45
Where is Congress's power to act defined?
Article I
46
In order for Congress to act, there must be what?
Express or implied Congressional power.
There is no general federal police power. State and local governments are said to have the police power.
47
What are the exceptions where it may be said that Congress has police power?
1. If it is legislating for the military, for Indian reservations, for federal lands and territories, or for the District of Columbia. Mneumonic: MILD.
48
Necessary and Proper Clause
Article I, Section 8 says that Congress may adopt all laws that are necessary and proper to carry out its authority.
McColloch v. Maryland: this provides that Congress can choose any means not prohibited by the constitution to carry out its authority.
Congress could create a national bake sale to raise money to carry out its authority to raise an army and a navy.
49
Taxing/spending power of Congress:
Congress may tax and spend for the general welfare. Congress may create any tax to raise revenue and any spending program to expend the revenue that Congress believes will serve the general welfare.
This was reaffirmed by the Supreme Court in June 2012 when it held that the individual mandate is constitutional as an exercise of congress's taxing power. The individual mandate requires that each person purchase insurance by 2014 or pay a tax (1% of income or $95 in 2014; 2% income and $235 in 2015; money collected by IRS as part of its regular tax collection operations. Any funds generated goes to the federal treasury.). The Supreme Court said this was a tax and that Congress always had the power to tax behavior that it wanted to discourage.
50
Why is the taxing/spending power of Congress considered to be a general police power?
Because it is enacting legislation for the general welfare. But can only do so under the taxing and spending power.
51
Commerce Power Clause says what?
Congress can regulate commerce with foreign nations, with Indian tribes, and among the states.
52
From 1937 until 1995, how did the Supreme Court define the scope of Congress's Commerce power?
Broadly; during this period no law was ever struck down as exceeding the scope of Congress's commerce power.
53
What happened to commerce power in 1995?
United States v. Lopez; Involved federal gun free school act; Supreme court declared this unconstitutional. The court said that congress can act under the commerce clause in any one of three situations.
54
What are the 3 situations that Congress may act under the commerce clause according to Lopez?
1. Congress may regulate the channels of interstate commerce.
2. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce.
3. Congress may regulate economic activities that have a substantial effect on interstate commerce. (In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.)
55
What are channels of interstate commerce?
Places where commerce occurs: the highways, the waterways, the internet.
56
What are the instrumentalities of interstate commerce?
The things that facilitate interstate commerce; trucks, planes, telephones, the internet.
57
Who are the persons or things in interstate commerce?
Gibbons v. Ogden, Chief Justice Marshall said commerce refers to all forms of intercourse. Congress can regulate electricity, radio waves, stocks, cattle, even people if they go across state lines.
58
Wickard v. Filburn
1942 case where Congress was regulating raising of wheat, even when it was only for home use. Court said that if you look at all the wheat being raised for home use, then cumulatively there was a substantial effect on interstate commerce and within the scope of the commerce power.
59
What did the court say in Gonzales v. Raich in 2005?
Court said that Congress under commerce power could criminally prohibit and punish the cultivation and possession of small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce and the cumulative effect of personal cultivation is an economic activity and substantially effects interstate commerce.
60
What was the holding of US v. Morrison in 2000?
In regulating non economic activity, substantial effect cannot be based on cumulative impact. VAWA case. Congress had found that violence against women cost the US a lot of money every year. Court said doesn't matter because it was a noneconomic activity.
61
Why did the dissent in the 2012 Patient Protection and Affordable Care Act say that the act was a violation of the Commerce clause?
Congress must be regulating activity. It can't use this power to regulate inactivity. The individual mandate exceeded the scope because it regulated those who were not purchasing insurance.
62
Tenth Amendment:
The Tenth Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
In the last twenty years, the Supreme Court has revived the Tenth Amendment as a limit on Congress's power.
63
Tenth Amendment as a limit on Congressional Powers: 2 rules
1. Congress cannot compel state regulatory or legislative action.
Questions on bar exam are usually based on recent cases.
New York vs. United States in 1992 challenged federal act where every state had to clean up its low level nuclear waste by 1996. Any state that failed to do so, would take title for the waste and will be liable for any harm. Court said unconstitutional be Congress was conscripting, commandeering the states by forcing them to make laws regarding nuclear waste.
Printz v. United States 1997: hand gun control act required that state and local law enforcement officials must do background checks before issuing permits for firearms. Unconstitutional because Congress was commandeering/conscripting the states to enforce a federal mandate.
2. Congress may prohibit harmful commercial activity by state governments.
Reno v. Condon 2000; Supreme court upheld the Driver's Privacy Protection Act which prohibited state DMVs from selling personal information. Court said that Congress was not putting an affirmative duty on the states, rather it was prohibiting harmful commercial behavior.
64
Even though Congress may not conscript/commandeer states, what may it do?
It may induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program.
example: when congress wanted the states to have a 21 year old drinking age, it said that any state that didn't have that drinking age, would lose 5% of highway funds.
However, the conditions cannot be unduly coercive. Supreme court made this clear in June 2012 in the Affordable Care Act decision. One provision of the Affordable Care Act said that any state taking federal medicaid funds must include in its medicaid program those within 133% of the federal poverty level. Federal govt was paying 100% of the cost until 2019 and 90% thereafter. The Supreme Court said that this was unconstitutional because given amount of money the states had no choice. The states were being coerced.
65
Congress' power under section 5 of the Fourteenth Amendment:
Congress 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 laws must be "proportionate" and "congruent" to remedying constitutional violations.
City of Boerne v. Flores, 1997
66
Delegation of Congressional powers: limits
No limit exists on Congress's ability to delegate legislative power.
There was a time prior to 1937 when the supreme court enforced the nondelegation doctrine which stated that congress could not delegate its legislative powers, such as to executive agencies. But since 1937, not one federal law has been struck down as an excess of delegation. It doesn't matter how broad the delegation is. Every delegation has been upheld.
67
Legislative vetos and line item vetos:
Unconstitutional.
For Congress to act, there always must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President and sign or veto). The President must sign or veto the bill in its entirety.
A legislative veto is where congress attempts to overturn an executive action without bicamerlism and presentment. (like a new agency rule)
Line item veto is where president attempts to veto part of the veto while signing the rest into law. Congress passed an act allowing line item veto for the president, but the supreme court found it unconstitutional.
68
Delegation of executive power to Congress or its officers:
Unconstitutional due to separation of powers rules.
69
Where is the power of the President and the Executive branch found?
Article II.
70
Power of the President and the executive branch can be divided into two subparts:
1. Foreign Policy; 2. Domestic affairs.
71
Treaties: defined
Treaties are agreements between the United States and a foreign country that are negotiated by the President and are effective when ratified by the Senate.
72
Treaties: rules
1. Treaties prevail over conflicting state laws (state laws that conflict with treaties are invalid).
2. If a treaty conflicts with a federal statute, the one adopted last in time controls.
3. If a treaty conflicts with the United States Constitution, it is invalid.
73
Executive agreements: defined
An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation.
Do not require Senate approval to be effective.
74
Executive agreement: rules
1. Executive agreements can be used for any purpose.
| 2. Executive agreements prevail over conflicting state laws, but never over conflicting federal law or the Constitution.
75
President's power to use American troops in foreign countries.
The President has broad powers as Commander in Chief to use American troops in foreign countries.
Has NEVER been declared as unconstitutional by Supreme Court. Even where there is no declaration of war. Case is usually dismissed as a political question case.
76
Who possesses the appointment power?
1. The President appoints ambassadors, federal judges and officers of the United States. The Senate must confirm the nomination in order for the person to take office, but the appointment power rests solely with the President.
2. Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts. Supreme court has never really defined what is an inferior officer, but says it is those who can be fired. Attorney General can fire US Attorneys, so these are inferior officers. Under Secretary of state can be fired by the Secretary of State.
3. Congress may not give itself or its officers the appointment power.
77
Who possesses the removal power?
Unless removal is limited by statute, the President may fire any executive branch officer.
For Congress to limit removal: it must be an office where independence from the President is desirable AND Congress cannot prohibit removal, it can limit removal to where there is good cause.
78
Impeachment and removal from office: rules
The President, the Vice President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors.
Impeachment does not remove a person from office.
The constitution says that the House of Representatives has the sole power to impeach. If the House impeaches, there is a trial in the Senate. Only if the Senate convicts is the person removed from office.
Andrew Johnson and Bill Clinton were both impeached by the House, but neither one convicted by the Senate.
Impeachment by the House requires a majority vote; conviction in the Senate requires a 2/3 vote.
79
President's immunity to civil suits: rule
President has absolute immunity to civil suits for money damages for any actions while in office. However, the President does not have immunity for actions that occurred prior to taking office. Clinton v. Jones
80
President has executive privilege for what?
For presidential papers and conversations, but such privilege must yield to other important government interests. United States v. Nixon
81
Presidential power to pardon:
Those accused or convicted of FEDERAL crimes
Only one exception: a person who has been impeached by the House can never be pardoned for things that led to impeachment.
President can pardon only for criminal liability, never for civil liability.
82
Preemption: basis
The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
Because of the Supremacy clause, if there is a conflict between federal law and state law, federal law preempts the state law.
83
Express preemption:
when a federal statute says that federal law is exclusive in an area, state and local laws are deemed preempted.
Anytime that Congress has the authority to act, Congress can include language in the statute that state and local laws are preempted.
84
Implied preemption:
Can be found in any one of the following ways:
1. If federal and state laws are mutually exclusive, federal law preempts state law. (not possible to comply with both, then state law preempted)
2. If state law impedes the achievement of a federal objective, federal law preempts state law.
3. If Congress evidences a clear intent to preempt state law, federal law preempts state law.
85
Most important example of implied preemption:
Immigration law. Congress has evidenced an clear intent to wholly occupy the field. Arizona v. United States, 2012. Supreme Court found that parts of Arizona law interfered with federal law. States cannot "contradict or complement" federal immigration efforts.
86
States power to tax or regulate federal government activity:
States may not tax or regulate federal government activity. McColloch v. Maryland, Supreme Court declared unconstitutional a state tax on the United States. "The power to tax is a power to destroy."
Example:
It is unconstitutional to pay estate tax out of the federal treasury.
Federal government doesn't have to comply with state pollution control laws.
states cannot regulate federal activity if it puts a significant burden on the federal government.
Inter-governmental immunity: the immunity the federal government has from unwanted state taxation or regulation.
87
Dormant Commerce Clause: defined
A principle that a state or local law is unconstitutional if it places undue burden on interstate commerce.
There is no provision in the constitution that says this. The Supreme Court has inferred it from the Commerce Clause.
88
How do you decide whether to apply the Commerce Clause or the Dormant Commerce Clause:
If it is Congress acting, apply Commerce Clause. If it is the state or local government acting, apply the Dormant Commerce Clause.
89
Another name for dormant commerce clause:
Negative implications of the commerce clause.
90
Privileges and Immunities Clause of Article IV: defined
No state may deprive citizens of other states of the privileges and immunities it affords its own citizens.
Applies ONLY when there is discrimination against out of staters.
91
Privileges or Immunities Clause of the Fourteenth Amendment: defined
The privileges or immunities clause is always a wrong answer unless the question involves the right to travel.
The privileges or immunities clause was interpreted by Slaughterhouse cases and gave it such a narrow interpretation to effectively read it out of the Constitution. In 1999 the court rediscovered the Privileges or Immunities Clause in a right to travel case.
92
Analysis of a question about the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV: step 1
Ask: Does the state law discriminate against out of staters?
93
Analysis of a question about the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV: Step 2 If the law does NOT discriminate against out of staters.
If the law does NOT discriminate:
(a) The Privileges and Immunities Clause of Article IV does not apply.
(b) If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.
94
Analysis of a question about the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV:
Step 2 If the law discriminates against out of staters and the law burdens interstate commerce.
If the law burdens interstate commerce, it violates the dormant commerce clause unless it is NECESSARY to achieve an IMPORTANT governmental purpose. (Maine v. Taylor: state had an important interest in protecting native Maine species of fish by prohibiting the importation of bait fish into Maine.) Also, it must be Necessary: no less discriminatory alternative could achieve its objective.
Exception 1: Congressional approval (think about it, once Congress has acted, the Commerce clause is activated);
Exception 2: The market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses. (Example: instate vs. out of state tuition: allowed because of the market participant exception. The state can favor in state because their taxes pay for the schools. South Dakota owned and operated a cement factory which charged less to in state purchase of cement; law upheld because the govt owned and operated the factory.)
95
Analysis of a question about the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV: Step 2 If the law does NOT discriminate against out of staters with regard to their ability to earn their livelihood.
It violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose.
1. The law must discriminate against out of staters.
2. The discrimination must be with regard to civil liberties or important economic activities (ability of people to earn their livelihood).
3. Corporation and aliens cannot use the privileges and immunities clause. (only can use dormant commerce clause)
4. The discrimination must be necessary to achieve an important government purpose. (no less discriminatory means to obtain its objective)
96
State taxation of interstate commerce: rules
1. States may not use their tax systems to help in-state businesses.
2. A state may only tax activities if there is a substantial nexus to the state.
3. State taxation of interstate businesses must be fairly apportioned.
97
Full Faith and Credit: rule
Courts in one state must enforce the judgment of the court in another state, so long as:
1. The court that rendered the judgment had jurisdiction over the parties and the subject matter.
2. The judgment was on the merits.
3. The judgment is final.
98
What are the rules regarding government action and private action with regard to protection of individual liberties.
1. The Constitution applies only to government action. Private conduct need not comply with the Constitution.
2. Congress, by statute, may apply constitutional norms to private conduct.
3. There are some situations where private conduct must comply with the Constitution.
99
Congress may, by statute, may apply constitutional norms to private conduct: examples
1. The Thirteenth Amendment can be used to prohibit private race discrimination. (prohibits slavery and involuntary servitude)(Tip: discrimination never violates the 13th amendment itself, only slavery violated the 13th amendment. But discrimination can violate a federal statute that was promulgated under the 13th Amendment.)
2. The commerce power can be used to apply constitutional norms to private conduct. 1964 Civil Rights Acts: prohibits discrimination by hotels and restaurants.
3. Congress cannot use section 5 of the 14th Amendment to regulate private behavior--can only regulate state and local governments.
100
Situations where private conduct must comply with the Constitution.
1. The public function exception. The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government. (Running a mining town.) Jackson v. Metropolitan Edison: a privately owned utility company that went to terminate a customer's service. Public utility must provide due process. Court said the utility does not have to provide due process because running a utility is not something that has traditionally be run by a government.
2. The entanglement exception. The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
101
Key examples of entanglement exception: 7
1. Courts cannot enforce racially restrictive covenants.
2. There is state action when the government leases premises to a restaurant that racially discriminates.
3. There is state action when a state provides books to schools that racially discriminate.
4. There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech. (How do you distinguish this from #3? In #3 the state was doing what it was doing to encourage the discrimination. Government subsidy is insufficient to find state action.)
5. There is no state action when the NCAA orders the suspension of a basketball coach at a state university.
6. There is state action when a private entity regulates interscholastic sports within a state (Tennessee had delegated its duty to this entity and the money was state money. And operates in only one state where the NCAA operates in many states.).
7. There is not state action when a private club with a liquor license from the state racially discriminates. Supreme court said not enough entanglement.
PATTERN 1-5: if case involves race discrimination, then the court appears willing to find the entanglement exception.
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How does the Bill of Rights apply to the federal government?
The Bill of Rights applies directly only to the federal government.
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How does the Bill of Rights apply to state and local governments?
The Bill of Rights is applied to state and local governments through the incorporation into the due process clause of the Fourteenth Amendment with some exceptions: 3, 5, 7, 8
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What are the provisions of the Bill of Rights that are not incorporated through the 14th Amendment:
1. The Third Amendment right to not have a soldier quartered in a person's home.
2. The Fifth Amendment right to grand jury indictment in criminal cases.
3. The Seventh Amendment right to jury trial in civil cases.
4. The Eighth Amendment right against excessive fines.
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Levels of scrutiny:
Rational basis test; Intermediate scrutiny; Strict scrutiny
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Rational basis test: defined
A law is upheld if it is rationally related to a legitimate conceivable government purpose. The challenger has the burden of proof: must show that either there is no conceivable legitimate purpose OR that it is not rationally related to it.
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Intermediate scrutiny: defined
A law will be upheld if it is substantially related (narrowly tailored) to achieve an actual important government purpose. Burden of proof is on the government.
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Strict scrutiny: defined
A law will be upheld if it is necessary to achieve an actual compelling government purpose. The burden of proof is on the government. Least restrictive alternative analysis is used here.
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Procedural due process: defined
Refers to the procedures that the government must follow when it takes away a person's life, liberty, or property.
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Substantive due process: defined
Asks whether the government has an adequate reason for taking away a person's life, liberty, or property. What is adequate will depend on the level of scrutiny used.
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Equal protection: defined
Asks whether the government's differences in the treatment of people adequately justified.
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All procedural due process issues can be broken down into 2 questions.
1. Has there been a deprivation of life, liberty, or property?
2. What procedures are required?
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A deprivation of liberty occurs if:
there is a loss of a significant freedom provided by the Constitution or a statute.
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Examples of deprivation of liberty:
Usually easy to spot because it violates someone constitutional rights. Additional, not so easy to identify examples: 1. Except in an emergency, before an adult can be institutionalized, there must be notice and a hearing. 2. When a parent institutionalizes a child, there only has to be a screening by a neutral fact finder. Assumes that parents act in the best interest of children. 3. Harm to reputation by itself is not a loss of liberty. This was the holding of Paul v. Davis in 1976. Kentucky had the habit of posting pictures of shoplifters, but erroneously posted the plaintiffs picture. 4. Prisoners rarely have liberty interests.
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A deprivation of property occurs if:
there is an entitlement and that entitlement is not fulfilled.
The rights/privileges distinction was discarded by the courts. New magic word in entitlement. An entitlement exists if there is a reasonable expectation to continued receipt of a benefit.
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Examples of deprivation of property:
1. Person is promised by the government that they will have a job for a year, but half way through the year the govt takes the job away without notice and a hearing. Was property deprived? Yes.
2. Roth v. Board of Regents: roth worked on a year to year contract. Contract expired and was not renewed. Roth sued saying he should have had due process. No process due. No reasonable expectation that the contract would be renewed.
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What state of mind on the part of the government is required for a deprivation of due process?
Government negligence is not sufficient for a deprivation of due process. Generally, there must be intentional government action or at least reckless action for liability to exist. However, in emergency situations, the government is liable under due process only if its conduct "shocks the conscience."
Tripping on a pillow negligently left on the stairs in a prison is not a deprivation of due process.
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What is the duty of the government to protect people from privately inflicted harms:
Does not deny due process. This was the holding of Deshaney: Joshua Deshaney was a 4 year old boy who was beaten by the father and suffered permanent severe brain damage, in spite of there being many reports of child abuse and the agency did nothing. Only if a person is physically in government custody or if the government creates the risk, can the govt have a duty to prevent harm.
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What procedures are required for procedural due process?
The test (Mathews v. Eldridge): Balance 1. The importance of the interest to the individual; 2. The ability of additional procedures to increase accuracy of the fact-finding; 3. The government's interest.
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Examples of the balancing test for due process:
1. Before a person's welfare benefits can be terminated, there must be notice and a hearing; 2. when social security disability benefits are terminated there need be only a post termination hearing; 3. when a student is disciplined by a public school, there must be notice of the charges and an opportunity to explain to a principle or other administration (one qualification--corporal punishment does not require any due process); 4. before parent's custody rights to a child can be terminated there must be notice and a hearing; 5. punitive damages require instructions to the jury and judicial review (additionally the court has said that grossly excessive punitive damages violate due process--BMW v. Gore); 6. An American citizen held as an enemy combatant must be given due process (notice of charges, meaningful hearing, representation by a lawery); 7. Except in exigent circumstances, prejudgment attachment or government seizure of assets must be preceded by notice and hearing (the ability of the person to sell or use the property is limited--the only exception is exigent circumstances where there is reason to believe the person will get rid of the property if noticed. The government may seize property used in illegal activity even if it has an innocent owner).
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What level of scrutiny is used for laws affecting economic rights?
Only a rational basis test. The Constitution provides only minimal protection for economic liberties. During Lockner era the Supreme Court said that freedom of contract was a fundamental right. But after 1937 all these decisions have been overruled. Now only have rational basis review.
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Takings clause:
The government may take private property for public use, but it must provide compensation.
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Taking analysis:
1. Is there a taking?; 2. Is it for public use?; 3. Is just compensation paid?
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How to tell if there is a taking:
1. Possessory taking: Government confiscation or physical occupation of property is a taking.
2. Regulatory taking: Government regulation is a taking if it leaves NO reasonable economically viable use of the property. (not a taking if only decreases the value of the property)
NOTE: Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.
NOTE: A property owner may bring a takings challenge to regulations that existed at the time the property was acquired.
NOTE: Temporarily denying an owner use of property is not a taking so long as the government's action is reasonable.
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The government may take property only for what?
Public use. If it is not for public use then government is going to have to give the property back. However, the Supreme court has broadly defined public use: a taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. (even taking from some private owners to sell to other private owners)
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Standard of payment for a taking:
Just compensation--measured in terms of the loss to the owner in reasonable market value. The gain to the taker is irrelevant.
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Contracts clause:
Found in Article I, section 10. No state shall impair the obligations of contracts.
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Contract clause applies to what?
Only to state or local interference with EXISTING contracts. Not to federal interference. The federal government would have to be challenged under due process.
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When may state or local governments permissibly interfere with existing contracts?
When intermediate scrutiny is met (different from other intermediate scrutiny tests):
1. Does the legislation substantially impair a party's rights under an existing contract?
2. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
Even though labeled intermediate scrutiny it combines elements of rational basis scrutiny.
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When may a state or local government interfere with government contracts?
Only when it meets strict scrutiny.
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Ex post facto clause:
Applies only in criminal cases. Neither the federal or state or local governments can adopt an ex post facto law.
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What is an ex post facto law?
An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.
No relevance in civil cases.
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What is the rule regarding retroactive civil liability?
Only needs to meet a rational basis test.
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What is a bill of attainder?
A bill of attainder is a law that directs the punishment of a specific person or persons without a trial. Unconstitutional.
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What kind of right is privacy?
Privacy is a fundamental right protected under substantive due process.
Supreme court says that privacy is a fundamental right under the word liberty of the due process clause.
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What kind of scrutiny is used for a fundamental right?
Strict scrutiny.
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What are the fundamental rights under privacy?
1. Right to marry; 2. Right to procreate; 3. Right to custody of one's children (a state may create an irrebutable presumption that a married woman's husband is the father of her child); 4. The right to keep the family together (includes the extended family--but must be related); 5. the right to control the upbringing of one's children; 6. The right to purchase and use contraceptives; 7. the right to abortion (no longer is strict scrutiny used); 8. the right to engage in private adult consensual homosexual activity (level of scrutiny unknown); 9. the right to refuse medical treatment (level of scrutiny unknown); 10. There is not a right to physician-assisted death.
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Current rules on abortion:
1. Prior to viability, the government cannot prohibit abortion. Government can regulate abortion so long that it doesn't place undue burden on the right. Viability is the time at which the fetus can survive outside the womb. The Undue Burden Test has replace strict scrutiny. Examples: 24 hour waiting period is not an undue burden . 2. Requirement that abortions be performed by licensed physician is not undue burden. 3. Prohibition on partial birth abortions is not an undue burden.
2. After viability the government may prohibit abortions except where necessary to protect the woman's life.
3. The government has no duty to subsidize abortions or provide abortions in public hospitals.
4. Spousal consent and notification laws are unconstitutional.
5. Parental notice and consent laws for unmarried minors: ok so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself.
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What are the rules regarding the right to refuse medical treatment?
1. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
2. A state may require clean and convincing evidence that a person wanted treatment terminated before it has ended (state has interest in protecting sanctity of life).
3. A state may prevent family members from terminating treatment for another.
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Second amendment right to bear arms:
Second amendment protects the right of people to keep guns in their homes for security. Don't know what the level of scrutiny is; court has been clear that it is not an absolute right; government can regulate where you can have guns and who can have guns.
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Right to travel:
Laws that prevent people from moving into a state must meet strict scrutiny.
The right to travel is a fundamental right under either the equal protection clause or the privileges and immunities clause of article iv.
Durational residency requirements are requirements for a minimum residency in order to receive benefits. Must meet strict scrutiny because is a fundamental right to travel. For voting, 50 days is the maximum allowable durational requirement. STates need time to check the rolls.
Only a rational basis test is used on restrictions on foreign travel. No fundamental right.
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Right to vote: rules
15th Amendment and Equal protection.
Laws that prevent some citizens from voting must meet strict scrutiny, but regulations of the electoral process to prevent fraud need only be on balance desirable.
One person-one vote must be met for all state and local elections. For any elected body, all districts must be about the same in population.
At-large elections are constitutional unless there is proof of a discriminatory purpose. An at-large election is where all of the voters vote for all of the office holders.
The use of race in drawing election district lines (to benefit minority voters) must meet strict scrutiny.
Counting uncounted votes without pre-set standards in a presidential elections violates equal protection.
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What kind of a right is education?
NOT a fundamental right.
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Any equal protection question analytically can be broken down into three steps:
1. What is the classification? (How is the government drawing a distinction between people?)
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?
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How is equal protection applied to the federal government?
Through the due process clause of the Fifth Amendment. The equal protection clause of the 14th Amendment applies only to state and local governments. Although there is not express provision for an equal protection requirement for the federal government, the Supreme Court has said that the due process clause of the 5th Amendment includes equal protection.
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Classifications based on race and national origin: what scrutiny
Strict scrutiny is used
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How is the existence of a racial classification proven?
1. The classification exists on the face of the law;
2. If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent. (Washington vs. Davis: employment test for police officer, but blacks failed the test more than whites. Supreme court said there was impact but not intent.
Preemptory challenges based on race denies equal protection: facially neutral law, but impact and intent was present.
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How should racial classifications benefiting minorities be treated?
1. Strict scrutiny is applied;
2. Numerical set-asides are not allowed, except to remedy clearly proven past discrimination (supreme court hostile to quotas);
3. Educational institutions may use race as one factor in admissions decisions to help minorities. However, educational institutions may not add points to applicants' admissions scores based on race;
4. Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.
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What scrutiny is used for gender classification?
Intermediate scrutiny plus. Gender discrimination is allowed only if there is "a exceedingly persuasive justification."
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What are the two ways of proving a gender classification?
1. The classification exists on the face of the law.
2. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact AND discriminatory intent. example: discriminatory use of preemptory challenges based on gender denies equal protection.
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How should gender classifications benefiting women be treated?
1. Gender classifications benefiting women that are based on role stereotypes will not be allowed.
2. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.
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What is alienage classifications?
Alienage classifications are for the laws that discrimination against non citizens. (favorite on multistate)
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What is the scrutiny used for alienage classifications:
1. Generally, strict scrutiny is used. (state had law that said only citizens could receive welfare benefits--unconstitutional)
2. But only a rational basis test is used for alienage classifications that concern self-government and the democratic process. The government may discriminate with regard to voting, serving on a jury, being a police officer, a teacher, a probation officer.
3. Only a rational basis test is used for Congressional discrimination against aliens.
4. It appears that intermediate scrutiny is used for discrimination against undocumented alien children.
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Discrimination against non-marital children: rules
1. Intermediate scrutiny
| 2. Laws that provide a benefit to all marital children but no non-marital children are always unconstitutional.
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Rational basis review is used for all other types of discrimination under the Constitution: examples
1. Age discrimination; 2. Disability discrimination; 3. Wealth discrimination; 4. Economic discrimination; 5. Sexual orientation discrimination
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content-based v. content-neutral restrictions:
1. Content-based restrictions on speech generally must meet strict scrutiny.
2. Content-neutral laws burdening speech generally need only meet intermediate scrutiny.
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Two types of content based laws:
1. Subject matter restrictions (application of the law depends on the topic of the message).
2. Viewpoint restrictions (application of the law depends on the ideology of the message).
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Prior restraints: defined
a judicial order or administrative system that stops speech before it occurs
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Court orders restricting speech: rules
Temporary Restraining Order or Preliminary Injunction.
Must meet strict scrutiny.
Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.
Gag orders on the press to prevent bad publicity are not allowed.
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License for speech: rules
A government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.
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Vagueness:
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
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Overbreadth:
A law is unconstitutionally overbroad if it regularly substantially more speech than the constitution allows to be regulated.
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Fighting words:
fighting words laws are unconstitutionally vague and overbroad
Fighting words are words directed at another that are likely to provoke a violent response.
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Symbolic speech:
The government may regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
Examples: 1. flag burning is constitutionally protected speech; 2. draft card burning is not protected speech; 3. Nude dancing is not protected speech; 4. Burning a cross is protected speech unless it is done with the intent to threaten; 5. contribution limits are constitutional; expenditure limits are unconstitutional.
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Anonymous speech:
is protected by first amendment
166
Government speech:
Cannot be challenged as violating the first amendment.
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What speech is unprotected or less protected by the First Amendment?
1. Incitement of illegal activity; 2. Obscenity and sexually-oriented speech; 3. commercial speech; 4. Defamation; 5. Privacy
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Incitement of Illegal Activity:
Unprotected speech. The government may punish speech if there is a substantial likelihood of imminent illegal activity AND if the speech is directed to causing imminent illegality.
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Obscenity and sexually oriented speech: test
1. Material must appeal to prurient (shameful or morbid) interest (determined by the community standard)
2. the material must be patently offensive under the law prohibiting obscenity (law must specify)
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value. (determined by a national standard)
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Obscenity and sexually oriented speech: rules
unprotected.
1. The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters.
2. Child pornography may be completely banned, even if not obscene (To be child pornography, children must be used in the production of the material)
3. The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography.
4. The government may seize the assets of businesses convicted of violating obscenity laws.
5. Profane and indecent speech is generally protected by the First Amendment (exceptions: 1. over the broadcast media; 2. in schools)
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Commercial speech: rules
1. Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment;
2. True commercial speech that inherently risks deception can be prohibited;
3. Other commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
4. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
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Examples of where true commercial speech that inherently risk deception can be prohibited:
1. The government may prevent professionals from advertising or practicing under a trade name; 2. the government may prohibit attorney, in person solicitation of clients for profit (but can offer free services; can send letters); 3. the government may not prohibit accountant from in-person solicitation of clients for profit
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Defamation: plaintiff is a public official or running for public office or is a public figure
plaintiff can recover for defamation only by proving with clear and convincing evidence the falsity of the statement and actual malice.
Actual malice means the defendant knew the statement was false or acted with reckless disregard for the truth.
Supreme court says essential for there to be open and robust debate.
Supreme court has never defined who is a public figure, but has indicated that public figures have thrust themselves into the limelight.
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Defamation: private figure and the speech involves a matter of public concern
the plaintiff may recover for defamation by proving falsity and negligence by the defendant. However , the plaintiff may recover presumed (damages set by statute) or punitive damages only by showing actual malice.
175
Defamation: plaintiff is a private figure and the matter does not involve a matter of public concern
plaint can recover presumed or punitive damages without showing actual malice
176
Government cannot create liability for IIED for defamatory speech that is protected:
Liability for IIED for defamatory speech must meet the defamation standards and cannot exist for speech otherwise protected by the first amendment.
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Privacy: rules
1. The government may not create liability for the truthful reporting of information that was lawfully obtained from the government.
2. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance.
3. The government may limit its own dissemination of information to protect privacy.
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Speech by government employees on the job in the performance of their duties:
not protected by the First Amendment
179
Other government restrictions on the content of speech must meet what scrutiny?
strict (example: restrictions on violent speech must meet strict scrutiny)
180
What places are available for speech:
1. public forums;
2. Designated public forums
3. Limited public forums
4. Non-public forums
5. Private property
181
Public forums: defined
government properties that the government is constitutionally required to make available for speech (sidewalks and parks)
182
Public forums: rules
Government can regulate speech in public forums, but it must meet certain requirements:
1. Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.
2. Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication.
3. Government regulation of public forum need not use the least restrictive alternative.
4. City official cannot have discretion to set permit fees for public demonstrations or parades.
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Designated public forums: defined
government properties that the government could close to speech, but chooses to open to speech. The same rules apply as for public forums.
example: public school facilities evenings and weekends
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Limited public forums: defined
government properties that the government chooses to open only to some speakers and some messages. The government can regulate speech in limited public forum so long as the regulation is reasonable and viewpoint neutral.
(example: commercial ads allowed on public bus, but political ads not allowed)
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Nonpublic forums: defined
government properties that the government constitutionally can and does close to speech. The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.
examples: military bases, areas outside prisons and jails, sidewalks on post office properties, airports
186
Private property:
No first amendment right of access to private property for speech purposes. (shopping centers)
187
Freedom of association: rules
1. Laws that prohibit or punish group membership must meet strict scrutiny.
2. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny.
3. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association (small dinner party) or expressive activity (clan an exclude blacks).
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To punish membership in a group it must be proven that the person:
1. actively affiliated with the group
2. knowing of its illegal activities; and
3. with the specific intent of furthering those illegal activities
189
Freedom of religion: Free exercise clause
1. The free exercise clause cannot be used to challenge a neutral law of general applicability.
2. The government may not deny benefits to individuals who quit their jobs for religious reasons.
190
Freedom of religion: Establishment clause--defined
The government may make not law regarding the establishment of religion.
191
Freedom of religion: Establishment clause--the test (Lemon)
1. There must be a secular purpose for the law; 2. the effect must be neither to advance nor inhibit religion; 3. there must not be excessive entanglement with religion (government generally cannot pay teacher salaries in parochial schools).
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Freedom of religion: Establishment clause--the rules
1. The government cannot discriminate against religious speech or among religions unless strict scrutiny is met;
2. Government 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. (school prayer is not allowed; clergy delivered prayers at a public school graduation; student prayer for high school football game; moment of silent prayer not allowed--still don't know about silent reflection)
3. The government may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents vouchers which they use in parochial schools.
