Constitutional Law

Question 1

Two Components of Judicial Review

Answer 1

1. Review of Other Branches of Government
   Judicial review of other branches of the federal government was established in Marbury v Madison.
2. Federal Review of State Acts
   Clear basis from the Supremacy Clause of Article VI, which states that the Constitution, Laws and Treaties of the US take precedence over state laws. Judges of state courts must follow federal law.

Question 2

SOP and Finality of Court Decisions

Answer 2

SOP doctrine prohibits the legislature from interfering with the courts’ FINAL judgments.

However, Congress may change federal statutes and may direct federal courts to apply those changes in all cases in which a final judgment has NOT been rendered.

Question 3

2 Types of Federal Courts

Answer 3

1. Article III Courts:
   - Established by Congress pursuant to Article III, Section 1.
   - Congress has power to delineate the jurisdictional limits, both original and appellate, of these courts. However, Congress remains bound by the standards of judicial power set forth in Article III as to: subject matter, parties, and the requirement of “case or controversy”.
   - Therefore, Congress cannot require these courts to render advisory opinions or perform administrative or non-judicial functions.
2. Article I Courts (or “Hybrid Courts”)
   - Created by Congress by way of implementing various legislative powers, e.g., United States Tax Court, courts of District of Columbia.
   - These courts are sometimes vested with administrative as well as judicial functions.

Question 4

Can Congress assign cases traditionally heard by Article III courts to Article I courts?

Answer 4

No. Congress may not take cases of the type traditionally heard by Article III courts and assign jurisdiction over them to Article I courts.

Question 5

Original (Trial) Jurisdiction of the Supreme Court

Answer 5

Under Article III, Section 2, the Supreme Court has original jurisdiction “in all cases affecting:
- Ambassadors,
- other public Ministers and Consuls,
- and those in which a State shall be a Party”.

Self-executing provision, i.e., Congress cannot restrict/enlarge/modify the Supreme Court’s original jurisdiction.

However, Congress may give concurrent jurisdiction to lower federal courts.

Question 6

Appellate Jurisdiction of the Supreme Court

Answer 6

Article III, Section 2 states that: “…the Supreme Court shall have Appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”. Therefore, the Cst has be read as giving Congress full power to regulate and limit the Supreme Court’s appellate jurisdiction (however, possible limitations have been suggested).

There are 2 ways of invoking Supreme Court appellate jurisdiction: (1) appeal and (2) certiorari.

Question 7

2 Ways of Invoking the Supreme Court’s Appellate Jurisdiction

Answer 7

Congress has provided two methods:

1. Appeal (Mandatory)
   - Where the Supreme Court must hear cases that come to it by appeal.
   - Congress has limited the types of cases that fall under Supreme Court’s mandatory appeal jurisdiction.
   - These cases are confined to decisions by three-judge federal district court panels that grant or deny injunctive relief. Very rare.
2. Writ of Certiorari (Discretionary)
   - The Supreme Court has complete discretion to hear cases that come to it by writ of certiorari (parties petition the court for grant of one).
   - Four justices must agree to hear it.
   - Cases that come by certiorari are: (1) cases from state courts where (i) the constitutionality of a federal statute, federal treaty or state statute is in issue or (ii) a state statute allegedly violates federal law and (2) all cases from federal courts of appeal.

Question 8

Which cases MAY be heard by a writ of certiorari at the Supreme Court?

Answer 8

1. Cases from the highest state courts where:
   (i) the constitutionality of a federal statute, federal treaty or state statute is in issue or
   (ii) a state statute allegedly violates federal law
2. All cases from federal courts of appeal.

Note: the Court’s decision to grant a writ of certiorari is DISCRETIONARY.

Question 9

Limitations on Federal Court Jurisdiction (i.e., instances where federal court will not adjudicate)

Answer 9

Whether a case is “justiciable” depends on whether there is a “case or controversy” and whether there are other constitutional and self-imposed limitations on jurisdiction. Limitations on jurisdiction include:

1. No Advisory Opinions
   - There must be specific present harm/threat of specific future harm.
   - Federal courts will NOT determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.
2. Ripeness
   - To avoid issuing advisory opinions, federal courts require that a dispute has matured sufficiently to warrant a decision. A federal court will consider: (i) the fitness of the issues for judicial decision and (ii) the hardship to the parties of withholding court consideration.
3. Mootness
   - A real, live controversy must exist at all stages of review. Exceptions apply: (i) capable of repetition but evading review, (ii) voluntary cessation, (iii) class action scenarios.
4. Standing
5. Adequate and Independent State Grounds
6. Abstention
7. Political Questions
8. 11th Amendment Limits on Federal Courts

Outline, p. 34-36.

Question 10

Limitations on Federal Courts’ Jurisdiction #1: No Advisory Opinions

Answer 10

1. No Advisory Opinions

• There must be specific present harm/threat of specific future harm.
• Cf. Federal courts can hear actions for declaratory relief if there is an actual dispute between parties having adverse legal interests.
• Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged actions poses a real and immediate danger to their interests.
• Federal courts will NOT determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.

Question 11

Limitations on Federal Courts’ Jurisdiction #2: Ripeness

Answer 11

To avoid issuing advisory opinions, federal courts require that a dispute has matured sufficiently to warrant a decision. A federal court will consider:
(i) the fitness of the issues for judicial decision and
(ii) the hardship to the parties of withholding court consideration.

Fitness: generally, an issue is not fit for judicial decision if it relies on uncertain/contingent future events that may not occur as anticipated. However, a court will hold that an issue is fit for judicial decision even if it relies on uncertain or contingent future events when the future events have an immediate impact.

Hardship: if a party would have to risk substantial hardship to provoke enforcement of the law (e.g., purchase of land).

Question 12

Limitations on Federal Courts’ Jurisdiction #3: Mootness

Answer 12

A real, live controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot.

Cf. Exceptions include:
(i) controversies capable of repetition but evading review, i.e., complainant subjected to the same action again and would be unable to resolve the issue because of the short duration of the action (e.g., abortion);
(ii) voluntary cessation, i.e., when the defendant voluntarily stops the offending practice but is free to resume it;
(iii) class representative may continue to pursue a class action even though the representative’s controversy has become moot, as long as the claim of others in the class are still viable

Question 13

Limitations on Federal Courts’ Jurisdiction: Ripeness v Mootness

Answer 13

Ripeness and mootness are related concepts in that the court will not hear a case unless there is a live controversy.

Ripeness bars consideration of claims BEFORE they have been developed; mootness bars their consideration AFTER they have been resolved.

Question 14

Limitations on Federal Courts’ Jurisdiction #4: Standing

Answer 14

A person has standing only if she can demonstrate a concrete stake in the outcome of the controversy.

A plaintiff will be able to show a sufficient stake in the controversy only if she can show an INJURY IN FACT – caused by the defendant – that will be REMEDIED by a decision in her favour (i.e., causation and redressability).

Components:
(1) Injury in fact: particularized + concrete injury
(2) Causation: causal connection between the injury and the conduct complained of
(3) Redressability: a decision in the litigant’s favour must be capable of eliminating her grievance (nb. not necessary if a federal statute confers standing to a litigant).

Question 15

Limitations on Federal Courts’ Jurisdiction #5: Adequate and Independent State Grounds

Answer 15

The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. The Supreme Court will not exercise jurisdiction if the state court judgment is based on ADEQUATE and INDEPENDENT state law grounds/nonfederal grounds – even if federal issues are involved.

Adequate: State law grounds are adequate if they are fully dispositive of the case, so that even if the federal grounds are wrongly decided, it would not affect the outcome of the case (i.e., the Supreme Court’s review of the federal law grounds for the state court’s decision would not affect the judgment rendered by the state court, i.e., Supreme Court would be rendering an advisory opinion).

Independence: State law grounds/nonfederal grounds are independent if the decision is not based on federal case interpretations of identical federal provisions.

Nb.: When the state court has not clearly indicated that its decision rests on state law, the Supreme Court will generally hear the case.

Question 16

Limitations on Federal Courts’ Jurisdiction #6: Abstention

Answer 16

(1) Unsettled State Law: A federal court will “stay its hand” or abstain temporarily when a federal constitutional claim is premised on an unsettled question of state law.

(2) Pending State Proceedings: A federal court will generally not enjoin pending state criminal proceedings.
- “pending”: if begun before the federal court begins proceedings on the merits (the order of filing charges is irrelevant)
- civil proceedings? federal courts should abstain from enjoining state administrative or civil proceedings when those proceedings involve an important state interest
- Exception: an order enjoining state proceedings will be issued in cases of proven harassment or prosecutions taken in bad faith (without hope of a valid conviction)

Question 17

Limitations on Federal Courts’ Jurisdiction #7: Political Questions

Answer 17

The Court will not decide political questions.

Political questions are:
1. Those issues committed by the Constitution to another branch of Government; or
2. Those inherently incapable of resolution and enforcement by the judicial process.

Cf.: Nonpolitical Controversies/Questions
- Where presidential papers/communications are necessary to the continuation of criminal proceedings, the question of production is justiciable and not political (generally these papers/comms are considered to be privileged and protected against disclosure in the exercise of executive power).
- A lawsuit challenging the validity of a federal statute should not be dismissed as a political question even if the case involves a dispute between branches of the federal government regarding foreign affairs.

Question 18

Limitations on Federal Courts’ Jurisdiction #8: 11th Amendment Limits on Federal Courts

Answer 18

The 11th Amendment bars/prohibits a federal court from hearing a claim (a private party’s or foreign government’s claims) against a state government.

What is barred?
- The prohibition extends to actions in which the state is named as a party or in which the state will have to pay retroactive damages.
- Similarly, the Supreme Ct has held that the doctrine of sovereign immunity bars suits against a state government in state court, even on federal claim, unless the defendant state consents or waives it 11th Amendment protection.

What is not barred?
- The prohibition does not extend to actions against local governments, actions by the United States or other states, or proceedings in federal bankruptcy courts.

Question 19

Exceptions to 11th Amendment

Answer 19

Recall: The 11th Amendment bars/prohibits a federal court from hearing a claim (a private party’s or foreign government’s claims) against a state government.

Exception 1: The Supreme Court allows the following actions to be BROUGHT AGAINST STATE OFFICIALS despite the 11th Amendment:

(a) Actions Against State Officers for Injunctions: actions to enjoin an officer from future conduct that violates the Constitution or federal law.

(b) Actions Against State Officers for Monetary Damages from Officer: action for damages against a state officer for violations of federal law if the monetary damages are to be paid out of the officer’s own pocket (because the action is not one against a state, but rather is against an individual).

(c) Actions Against State Officers for Prospective Payments form State: action for damages against a state officer where the effect of the action will be to force the state to pay money in the future to comply with the court order.

Exception 2: Congress can remove the states’ 11th Amendment immunity under its power to prevent discrimination under the 14th Amendment (e.g., Equal Pay Act – based on the 14th Amendment, can serve as a basis for federal suits against a state by its employees).

Question 20

The 11th Amendment will prohibit a federal court from hearing a claim for damages against a state government (although not against state officers) unless…?

Answer 20

(1) The state has consented to allow the lawsuit in federal court, inc. if the state implicitly consented to such suits as part of the basic structure of the Constitution;

(2) The plaintiff is the United States or another state;

(3) Congress has clearly granted federal courts the authority to hear a specific type of damage action under the 14th Amendment (e.g., under a civil rights statute).

Question 21

Congressional Conferral of Standing

Answer 21

A federal statute may create new interests, injury to which may be sufficient for standing.

When a statute specifically grants a litigant a procedural right to protect their interests, the litigant may establish jurisdiction without demonstrating redressability and immediacy, but they still must show a concrete stake in the litigation (injury in fact).

Question 22

Standing to Enforce Government Statutes and “Zone of Interests”

Answer 22

A plaintiff may have standing to enforce a federal statute if she is within the “zone of interests” Congress meant to protect, i.e., they have an injury in fact.

If Congress:
- intended the statute to protect such persons, and
- intended to allow private persons to bring federal court actions to enforce the statute,
the courts are likely to be lenient in granting standing to those persons.

Question 23

Standing to Assert Rights of Others

Answer 23

A claimant with standing in her own right/has herself suffered injury may also assert the rights of a third party if:

(A) 3rd parties find it difficult to assert their own rights (e.g., an association may attack a law requiring disclosure of membership lists, because members cannot attack the law without disclosing their identities)

(B) The injury suffered by the plaintiff adversely affects his relationship with 3rd parties / special relationship exists, resulting in an indirect violation of their rights (e.g., doctor asserting a patient’s rights in challenging abortion restriction).

Question 24

Can an organization have standing? If so, when?

Answer 24

Yes. An organization has standing to challenge an action that causes injury to the ORGANIZATION ITSELF.

It has standing to challenge actions that cause an injury to its MEMBERS if the organization can show:
(1) There must be injury in fact to the members that would give them a right to sue on their own behalf;
(2) The injury is related to the organization’s purpose; AND
(3) Individual member participation in the lawsuit is not required, due to the nature of the claim/relief requested.

Question 25

Can a person have standing as a "citizen" to claim that government action violates federal law or the Constitution?

Answer 25

No, as there's no direct, personal claim. Congress cannot change this rule by adopting a statute that would allow persons to have standing merely as citizens (where they otherwise have no direct, personal claim) to bring suit to force the government to observe the Constitution or federal laws. Note: 10th Amendment Violation Claims A person can have standing to allege that federal action violates the 10th Amendment by interfering with the powers reserved to the states, assuming that the person can show injury in fact + redressability.

Question 26

Does a person have standing to challenge the way tax dollars are spent by state or federal governments?

Answer 26

No, a taxpayer generally has no standing to challenge government expenditures, because their interest is too remote. EXCEPTION: A federal taxpayer can have standing to challenge a federal appropriation or spending measure if 2 conditions are met: (1) The challenged measure must have been enacted under Congress's taxing and spending power (Article I, Section 8, Clause 1). (2) The measure must violate a specific constitutional limitation. To date, the Supreme Court has only recognised one constitutional limitation that qualifies for this exception: the Establishment Clause of the First Amendment (prohibits the government from advancing or endorsing religion). Therefore: suits attacking congressional spending measures on the grounds of the 1st Amendment Establishment Clause HAVE standing.

Question 27

Do legislators have standing to challenge the constitutionality of government action? If so, when?

Answer 27

Yes. If they have a sufficient "personal stake" in the dispute and suffer sufficient "concrete injury".

Question 28

What powers can Congress exercise?

Answer 28

Congress can exercise those powers: - Enumerated in the Constituion (many of which are in Article I, Section 8) and - All auxiliary/implied powers NECESSARY AND PROPER to carry out all powers vested in the federal government.

Question 29

Necessary and 'Proper' Power

Answer 29

The Necessary and Proper Clause grants Congress the power to make all laws necessary and proper (i.e., appropriate) for executing any power granted to any branch of the federal government. Limitation: Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution. NOTE: - The Necessary and Proper Clause standing alone cannot support federal law. It must work in conjunction with another federal power.

Question 30

Powers of Congress

Answer 30

0. Necessary and 'Proper' Power - NOT standalone 1. Taxing Power 2. Spending Power 3. Commerce Power 4. War and Related Powers 5. Investigatory Power 6. Property Power 7. No Federal Police Power 8. Postal Power 9. Power Over Citizenship 11. Admiralty Power 12. Power to Coin Money and Fix Weights and Measures 13. Patent/Copyright Power

Question 31

Is broad delegation of legislative power allowed?

Answer 31

Yes. Congress has broad discretion to delegate its legislative powers to executive officers and/or administrative agencies. It may also delegate rulemaking power to the courts. Example: Congress can delegate the power to establish sentencing guidelines for criminal cases to a sentencing commission located in the federal courts and made up, in part, of federal judges, as long as the tasks delegated do not undermine the integrity of the judiciary or usurp the powers of the other branches.

Question 32

What limits are there on the delegation of legislative power?

Answer 32

(a) Cannot Be Uniquely Confined to Congress The power cannot be uniquely confined to Congress (e.g., the power to declare war, the power to impeach cannot be delegated). (b) Clear Standard A delegation will be upheld only if it includes intelligible standards for the delegate to follow. (c) Claims of Broad Delegation on Major Questions Claims that Congress delegated broad power to adopt regulations having wide-sweeping economic and political significance (“major questions”) will not automatically be upheld.

Question 33

Delegation of Legislative Powers and SOP

Answer 33

Congress has limits on its authority when delegating powers. 1. Congress cannot retain control over executive officers: - Congress cannot give itself the power to remove an officer of the executive branch, except through impeachment. - For example, if Congress delegates rulemaking authority to an executive agency (e.g., the FCC), it cannot retain the power to fire the agency head. 2. Congress cannot assign purely executive powers to someone it can remove: - Congress cannot give a government employee, who is subject to removal by Congress (outside of impeachment), powers that are purely executive in nature. 3. Criminal v Civil Punishment - The legislature may delegate its authority to enact regulations, the violations of which are crimes, but protection for such violations must be left to the executive and judicial branches. - However, agencies may enact and impose civil penalties without prosecution in court.

Question 34

What is the Speech or Debate clause?

Answer 34

A type of immunity for federal legislators. Article I, Section 6 provides that “For any speech or debate in either House [members of Congress] shall not be questioned in any other place.” This clause means any conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from protection. Does NOT extend to: - state legislations who are prosecuted for violation of federal law - bribes - speeches outside Congress - defamatory statements (republication of)

Question 35

Executive Power is Vested in...?

Answer 35

The entire "executive power" is vested in the President – Article II, Section 1 of the Constitution. Various executive functions may be and are delegated within the "executive branch" by the President or by Congress.

Question 36

List some of the Domestic Powers the Executive has.

Answer 36

1. Appointment and Removal of Officers 2. Pardons 3. Veto Power 4. Power as Chief Executive

Question 37

Appointment and Removals of Officers by the Executive

Answer 37

Under Article II, Section 2, the President is empowered to appoint "all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise provided for", with advice and consent of the Senate. Congress may vest the appointment of INFERIOR OFFICERS in: - the President alone - the courts, or - the heads of departments. Examples: "independent counsel" (i.e., special prosecutors); Congress is free to vest the power to appoint a special prosecutor in the judiciary Congress itself may NOT appoint members of a body with administrative or enforcement powers, i.e., "officers of the United States".

Question 38

Congress may NOT appoint which members of a body?

Answer 38

Congress may appoint its own officers to carry on INTERNAL LEGISLATIVE TASKS. Congress may NOT appoint members of a body with administrative or enforcement powers – such persons are "officers of the United States" and must, pursuant to Article II, Section 2, be appointed by the President without senatorial confirmation (unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments).

Question 39

Removal of Appointees by the President

Answer 39

The President can remove high-level, purely executive officers (e.g., Cabinet members) at will, without interference from Congress. Congress may not restrict the President from removing the head of an independent agency if that person is the SOLE DIRECTOR and has significant executive power (cf. FTC, multiple directors). Limitations: - However, Congress may provide statutory limitations (e.g., removal only for good cause) on the President's power to remove all other executive appointees. - Further, the Constitution ensures tenure for all Article III judges "during good behaviour".

Question 40

Removal of Appointees by Congress

Answer 40

Congress may remove executive officers only through the impeachment process.

Question 41

When can and can't the President grant pardons? Hint: Can't When CI

Answer 41

The President may grant pardons for all federal offences, but NOT for impeachment or civil contempt. The pardon power cannot be limited by Congress.

Question 42

What is the President's Veto Power?

Answer 42

Every act of Congress must be approved by the President before taking effect. If the President vetoes an act of Congress, the act may still become law if the veto is overridden by a 2/3s vote of EACH house. The President has 10 days to exercise the veto power. If he fails to act within that time: - if Congress is NOT in session, the bill is automatically vetoed - if Congress is in session, the bill becomes law

Question 43

Can the President veto parts of a bill and approve others?

Answer 43

No, this has been held to be unconstitutional. The veto power allows the President only to approve or reject the bill in toto; he cannot cancel part (through a line item veto) and approve other parts. Rationale: the President's veto power does not authorise him to amend or repeal laws passed by Congress.

Question 44

What are the President's power over internal affairs as Chief Executive?

Answer 44

Unsettled. Evidently, the President has some power to direct subordinate executive officers, and presidents issue executive orders. A general guide for determining the validity of presidential actions is as follows: (i) If the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions are likely valid; (ii) If the President acts where Congress is silent, his action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks; and (iii) If the President acts against the EXPRESS will of Congress, he has little authority, and his action likely is invalid (e.g., the President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent).

Question 45

Can the President refuse to spend appropriated funds when Congress has expressly mandated that they be spent?

Answer 45

No. The President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent. Some authorities base this result on Article II, Section 3, Clause 4 (the "Take Care Clause") — which provides that the President “shall take care that the laws be faithfully executed . . . .”

Question 46

What powers does the Executive have over external affairs?

Answer 46

1. War 2. Foreign Relations 3. Treaty Power 4. Executive Agreements

Question 47

Does the President have power to declare war? Does the Presidenet have extensive military powers?

Answer 47

No. The President cannot declare or initiate war, but the President has extensive military powers. (1) The President may act militarily in ACTUAL HOSTILITIES against the US without a congressional declaration of war, under its power as commander-in-chief of the armed forced. However, Congress may limit the President under its power to enact a military appropriation every two years. (2) The above power means the President may establish military governments in occupied territories, including military tribunals.

Question 48

Who has the power to recognise foreign states?

Answer 48

The power to recognize foreign states lies exclusively with the president.

Question 49

When can the President enter into treaties?

Answer 49

The President has the power to enter into treaties with the consent of 2/3s of the Senate.

Question 50

What is the nature of treaties (in terms of its ranking in the hierarchy of US law)?

Answer 50

They are akin to federal law, such that they are the "supreme law of the land". Any state action or law in conflict with a United States treaty is invalid (regardless of whether it is a state law or a state constitutional provision).

Question 51

Describe self-executing vs non-self-executing treaties.

Answer 51

Expressly or impliedly SELF-EXECUTING TREATIES: treaties that are effective without any implementation by Congress NON SELF-EXECUTING TREATIES: not effective unless and until Congress passes legislation to effectuate their ends (Nb.: the treaty itself can serve as an independent basis for Congress’s power to adopt the required legislation (i.e., Congress need not point to one of its enumerated powers as basis for the legislation)).

Question 52

Which prevails when there is a conflict between a congressional act and a valid treaty?

Answer 52

A conflict between a congressional act and a valid treaty is resolved by order of adoption: the LAST IN TIME PREVAILS.

Question 53

Which prevails when there is a conflict between the Constitution and a valid treaty?

Answer 53

The Constitution prevails. A treaty may not be inconsistent with the Constitution, nor can a treaty (or executive agreement) confer on Congress authority to act in a manner inconsistent with any specific provision of the Constitution.

Question 54

Does the President have the power to enter into executive agreements? What are executive agreements?

Answer 54

Yes. Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for, i.e., similar to treaties, except that they do not require the consent of the Senate. Example 1: The President, with implicit approval of Congress, has power to settle claims of United States citizens against foreign governments through an executive agreement. Example 2: The US-Ukraine mineral deal is an example of an executive agreement.

Question 55

Which prevails when there is a conflict between a federal statute and an executive agreement?

Answer 55

Executive agreements that are consented to by the Senate are not the "supreme law of the land". Thus, conflicting federal statutes and treaties will prevail over an executive agreement. However, executive agreements prevail over conflicting state law.

Question 56

What is Executive Privilege?

Answer 56

Where the Executive, i.e., the President, has the privilege to keep certain communications secret. Presidential documents and conversations are presumptively privileged, HOWEVER, in criminal proceedings, presidential communications will be available to the prosecution where a need for such information is demonstrated (US v Nixon).

Question 57

Do state criminal subpoenas fall under executive privilege?

Answer 57

No. Presidents are subject to state criminal subpoenas of the President's personal records – such records do not fall under the executive privilege. However, the President, like any other citizen, can challenge such subpoenas on state law grounds, including bad faith and undue burden or breadth, as well as constitutional grounds, including attempting to influence or interfere with the President’s official duties (Trump v Vance).

Question 58

What is Executive Immunity?

Answer 58

The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking office. This immunity may extend to presidential aides, if they are exercising discretionary authority for the President in "sensitive" areas of national concern, such as foreign affairs. Other aides are entitled only to a qualified immunity (a "good faith" defence).

Question 59

Who can be subject to impeachment?

Answer 59

The President, the Vice President, and all civil officers (inc. judges) of the United States. Impeachment is when charges are initiated against a public official for misconduct.

Question 60

What are the grounds for impeachment?

Answer 60

Treason, bribery, high crimes and misdemeanours.

Question 61

Describe impeachment vs conviction.

Answer 61

Impeachment by the House: - A majority vote in the House is necessary to INVOKE THE CHARGES of impeachment (i.e., to "impeach"). Conviction by the Senate - A 2/3 vote in the Senate is necessary to convict, which would result in the removal from office (if currently sitting).

Question 62

What are the exclusive federal powers?

Answer 62

(1) Powers Expressly Not State Powers Some powers are exclusively federal because the Constitution limits or prohibits the use of the power by states (e.g., treaty power, coinage of money). (2) Inherent Federal Powers Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (e.g., declaration of war, federal citizenship)

Question 63

What are exclusive state powers?

Answer 63

All powers not delegated to the federal government are reserved to the states (10th Amendment). However, given the expansive interpretation of federal power, little state power is exclusive.

Question 64

Effect of the Supremacy Clause

Answer 64

Most governmental power is concurrent, belonging to both the states and the federal government. Thus, it is possible for states and the federal government to pass legislation on the same subject matter. When this occurs, the Supremacy Clause provides that the federal law is supreme, and the STATE LAW IS RENDERED VOID IF IT IS PREEMPTED/SUPERSEDED. State law may be preempted expressly or impliedly.

Question 65

Supremacy Clause: When does express preemption occur?

Answer 65

(1) Express Preemption - A federal law may expressly provide that the states may not adopt laws concerning the subject matter of the federal legislation. - Express preemption will be narrowly construed.

Question 66

Supremacy Clause: When does implied preemption occur?

Answer 66

(2) Implied Preemption occurs if: - (a) Conflict Between State and Federal Law Requirements: If a state law conflicts with federal law requirements, the state law will be held to be impliedly preempted. - (b) State Law Prevents Achievement of Federal Objective: This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law. - (c) Field Preemption: A valid federal statute or regulation may impliedly "occupy" the entire field, thus precluding any state or local regulation, even if the state or local regulation is non-conflicting. The courts will look at the regulatory scheme to deduce whether Congress intended to preempt the entire field (e.g., if federal laws are comprehensive or an agency was created to oversee the area, preemption may be found).

Question 67

What is the presumption against preemption?

Answer 67

In all preemption cases, but especially in cases involving a field traditionally within the power of the states (e.g., regulations involving health, safety, or welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.

Question 68

What is the Full Faith and Credit Clause?

Answer 68

Put simply, this clause requires that all states recognise the legal outcomes of the different state judicial systems across the country. There are exceptions to this clause.

Question 69

What is the Interstate Compact Clause?

Answer 69

The Interstate Compact Clause provides that: - if an agreement between states increases the states' power at the expense of federal power, congressional approval is required. Nb.: The Constitution provides that states MAY enter into agreements or compacts with other states upon the consent of Congress, but when interstate agreements increase the political power of the states at the expense of federal supremacy (e.g., an agreement whereby one state cedes territory to another), then congressional approval is required.

Question 70

Does the United States require the state's consent to sue said state?

Answer 70

No. The United States may sue a state without its consent.

Question 71

Does a state require the United States' consent to sue the United States?

Answer 71

Yes. Public policy forbids a state from suing the United States without its consent. To consent, Congress can pass legislation that permits the United States to be sued by a state in given situations.

Question 72

When is a suit against a federal officer deemed to be brought against the United States itself? Would a suit be permitted?

Answer 72

Yes, it would if the judgment sought: (A) Would be satisfied out of the public treasury OR (B) Would interfere with public administration and therefore would not be permitted.

Question 73

How can specific relief be granted against an individual federal officer?

Answer 73

Specific relief against an officer as an individual will be granted if the officer acted ultra vires: (A) Beyond his statutory powers; or (B) The valid power was exercised in an unconstitutional manner.

Question 74

Can a state sue another state? Is consent required? Which court has original jurisdiction?

Answer 74

One state may sue another state WITHOUT the latter's consent. The Supreme Court has exclusive original jurisdiction.

Question 75

Is a federal tax or regulation applying to both state and private entities valid?

Answer 75

Yes. Congress may subject state and local government activities to regulation or taxation if the law or tax applies to BOTH the public sector and the private sector (e.g., minimum wage laws).

Question 76

Is a federal tax or regulation applicable to only state/local governments but not private businesses valid?

Answer 76

Likely not, as it may be limited by the 10th Amendment. The 10th Amendment limits Congress's power to regulate the states alone by requiring the states to act in a particular way. Congress may not compel states to enact or enforce a regulatory program. However, there are exceptions: (a) Congress may restrict state activities that violate civil liberties. (b) Congress may also "regulate" states through the SPENDING POWER by imposing conditions on the grant of money to state/local government. Such conditions will not violate the 10th Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions are: (1) clearly stated (2) relate to the purpose of the program; and (3) are not unduly coercive. NOTE: Court almost NEVER striles down on 10th Amendment grounds a federal regulation/tax that impacts state or local government.

Question 77

What is the Anti-Commandeering Rule?

Answer 77

The Supreme Court has held that the 10th Amendment prohibits Congress from adopting a statute that “commandeers” state officials to enforce federal laws. Such a requirement would upset the Constitution's "dual sovereignty" structure (i.e., both the states and the federal government are sovereigns). Example: A federal law prohibiting states from authorizing sports gambling violates the anti-commandeering rule.

Question 78

When does the Anti-Commandeering Rule not apply?

Answer 78

(1) The anti-commandeering rule does not apply when Congress regulates an activity in which both the states and private actors engage. (2) The anti-commandeering rule does not prevent state judges to enforce federal laws so long as those laws involve matters appropriate for judicial resolution.

Question 79

State Taxation and/or Regulation of Federal Government - is it allowed?

Answer 79

Recall: The Supremacy Clause provides that states cannot interfere with or control the operations of the federal government, unless the federal government has clearly and unambiguously waived immunity. This is known as the INTERGOVERNMENTAL IMMUNITY DOCTRINE. Therefore: **(1) No Direct Tax on Federal Instrumentalities** - A state tax levied directly against the property or operation of the federal government without the consent of Congress is INVALID. **(2) Nondiscriminatory, Indirect Taxes** - Nondiscriminatory, indirect taxes on the federal government or its property are PERMISSIBLE if they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). **(3) State Regulation of the Federal Government** The states have no power to regulate the activities of the federal government unless Congress consents to the regulation. Thus, instrumentalities and agents of the federal government are immune from state regulations relating to the performance of their federal functions.

Question 80

What is the Interstate Privileges and Immunities Clause (Article IV)? Nb.: not to be confused by the Privileges and Immunities Clause under the 14th Amendment [does not come up on exam often].

Answer 80

This clause prohibits some discrimination by a state against non-residents, per Article IV, Section 2. Nb.: Corporations and aliens are not protected by this clause.

Question 81

What is the Privileges and Immunities Clause under the 14th Amendment?

Answer 81

The 14th Amendment Privileges or Immunities Clause prohibits STATES from denying their citizens the privileges and immunities of national citizenship. Examples of such privileges and immunities include: the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel. Corporations are not protected by this Clause, as they are not citizens.

Question 82

What are things to consider when considering the applicability of the Interstate Privileges and Immunities Clause ("IPI Clause")?

Answer 82

(1) Only "Fundamental Rights" Protected - The IPI Clause prohibits discrimination by a state against nonresidents when the discrimination concerns "fundamental rights", i.e., rights relating to important commercial activities (such as pursuit of a livelihood) or civil liberties. - However, the Clause applies only if the discrimination is intentionally protectionist in nature. (2) Exception: Substantial Justification - The state law may be valid if the state has a substantial justification for the different treatment. - In effect, the state must show that nonresident either caused or are part of the problem that the state is trying to solve and there are no less restrictive means to solve the problem. (3) Consider Relationship to Commerce Clause: Although the Article IV Privileges and Immunities Clause and the Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered in analyzing bar exam questions. [?]

Question 83

Which body regulates foreign commerce?

Answer 83

The power to regulate foreign commerce lies exclusively with Congress. Minor exceptions for state regulation have been permitted by the Supreme Court (e.g., local aspects of port pilotage).

Question 84

Is Congress's power over interstate commerce exclusive?

Answer 84

No. Although Congress's power over interstate commerce is very broad and pervasive (or supersede or preempt), this power is nonexclusive and is shared with the states to some degree.

Question 85

Does Congress have power to permit state regulations that violate the Commerce Clause?

Answer 85

Yes, Congress may permit state regulations that would otherwise violate the Commerce Clause. Likewise, Congress may also prohibit state regulations that could otherwise be upheld under the Commerce Clause. However, Congress may NOT permit a state to violate civil liberties.

Question 86

Can Congress supersede or preempt a state law regulating commerce?

Answer 86

Yes. Recall the Supremacy Clause: - When Congress regulates interstate commerce, conflicting state laws are superseded - Even nonconflicting state or local laws in the same field may be preempted.

Question 87

Which 2 tests need to be met if a state wants to regulate commerce in the absence of congressional action?

Answer 87

If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation: (i) Does NOT DISCRIMINATE against out-of-state competition to benefit local economic interests; and - Exceptions apply. (ii) is NOT UNDULY BURDENSOME (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation). - A case-by-case balancing test. If either test is not met, the regulation will be held void for violating the Commerce Clause (sometimes referred to as "Dormant Commerce Clause" or "Negative Commerce Clause" under such circumstances).

Question 88

What are some exceptions to a discriminatory state/local law, i.e., they may be VALID despite being discriminatory? [Limb 1 of a Dormant/Negative Commerce Clause]

Answer 88

(1) NECESSARY TO IMPORTANT STATE INTEREST - A discriminatory state or local law may be valid if it furthers an important, non-economic state interest and there are no reasonable nondiscriminatory alternatives available. - Must be narrowly tailored. (2) STATE AS "MARKET PARTICIPANT" - The Commerce Clause 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 labour, giving subsidies). (3) FAVOURING GOVERNMENT PERFORMING TRADITIONAL GOVERNMENT FUNCTION - The Supreme Court applies a more lenient standard when a law favors government action involving the performance of a traditional government function (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.

Question 89

What is the interaction between the 21st Amendment and the Commerce Clause – with respect to state control over liquor?

Answer 89

21st Amendment: Repealed prohibition, and gives state governments wide latitude over the importation of liquor and the conditions under which liquor is sold or used within the state (INTRASTATE REGULATION). However, if state liquor regulations constitute only an economic preference for local liquor manufacturers, then it may violate the Commerce Clause. Liquor in interstate commerce is subject to the Commerce Clause (INTERSTATE REGULATION).

Question 90

What powers does Congress have with respect to the 21st Amendment (repealed prohibition, allows states to import liquor)?

Answer 90

- Congress may regulate economic transactions involving liquor (e.g., sales of alcoholic beverages) through the federal commerce power. - Thus, federal antitrust law can prohibit a practice of liquor dealers that has the effect of fixing minimum prices. - Congress may "regulate" liquor distribution by conditioning grants of federal funds given under the spending power (e.g., highway funds given only to states within min drinking age).

Question 91

Which 2 tests need to be met if a state wants to TAX interstate commerce in the absence of congressional action?

Answer 91

Similar to when a state wants to regulate interstate commerce, Congress has complete power to authorise or forbid state taxation affecting interstate commerce. If Congress has not acted, look to see whether the tax: (1) DISCRIMINATES against interstate commerce; and - State taxes that discriminate against interstate commerce violate the Commerce Clause. - Such taxes may also violate the IPI Clause if they discriminate against non-residents of the state (choose this if the tax is discriminating against a NATURAL PERSON). - Such taxes may also violate the Equal Protection Clause (without violating the Commerce Clause because Congress has allowed it to "violate"/ Congress approves the discrimination). (2) is UNDULY BURDENSOME (i.e., the incidental burden on interstate commerce outweighs the benefit to the state). - A three-limb test needs to be met under the undue burden test.

Question 92

A nondiscriminatory tax will be valid if which following 3 requirements are met?

Answer 92

Context: The Court reviews nondiscriminatory state and local taxes affecting interstate commerce and balances the state need to obtain the revenue against the burden the tax imposes on the free flow of commerce. 3 factors the court will consider are: (1) Substantial Nexus - To be valid, the tax must apply to an activity/property having a substantial nexus to the taxing state. - A substantial nexus exists when a business avails itself of the privilege of doing business in the state. A physical presence in the state is not necessary. (2) Fair Apportionment - To be valid, the max must be fairly apportioned according to a rational formula. - However, the taxpayer has the burden of proving unfair apportionment. - Nb. an unfairly apportioned tax may also violate equal protection. (3) Fair Relationship - To be valid, the tax must be fairly related to the services or benefits provided by the state.

Question 93

What are use taxes and are they considered to discriminate against interstate commerce?

Answer 93

Use Taxes: taxes imposed on the users of goods purchased out of state but used within it. Use Taxes are NOT considered to discriminate against interstate commerce even though they single out interstate commerce for taxation (i.e., they are imposed only on goods purchased outside the state), AS LONG as the use tax rate is not higher than the sales tax rate. When? - An interstate seller may be required to collect and remit a use tax if the seller has a substantial nexus with the taxing state (e.g., maintains offices in the taxing state). A physical presence is not required to establish a substantial nexus.

Question 94

What are sales taxes and are they considered to discriminate against interstate commerce?

Answer 94

Sales Taxes: taxes imposed on the seller of goods for sales consummated within the state. Sales Taxes generally DO NOT discriminate against interstate commerce. Rather, the issue is usually whether there is a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned.

Question 95

Can commodities be taxed in the course of interstate commerce?

Answer 95

No. Commodities in the course of interstate commerce are entirely exempt from local taxation – since each state could otherwise exact a toll as the goods passed through, imposing an intolerable burden on interstate commerce.

Question 96

When is property "in the course" of interstate commerce?

Answer 96

Property "in the course" of interstate commerce is immune from local property taxation. (A) When does interstate transportation begin? - Begins when the cargo (i) is delivered to an interstate carrier or (ii) actually starts its interstate journey. (B) Effect of "break" in transit? - A break in the continuity of transit does not destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment. (C) When does interstate shipment end? - The interstate shipment usually ends when the cargo reaches its destination; thereafter the goods are subject to local tax.

Question 97

Can there be a tax on instrumentalities used to transport goods interstate?

Answer 97

Yes, if the instrumentality (a) has acquired a "taxable situs" in the taxing state and (b) the value of the instrumentality has been properly apportioned according to the amount of "contacts" with each taxing state. (A) Taxable Situs An instrumentality has a taxable situs in a state if it receives benefits or protection from the state. (B) Apportionment Requirement A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state.

Question 98

Can states impose privilege, license, franchise and occupation taxes?

Answer 98

Yes, if the below requirements are satisfied. These taxes are collectively known as "doing business" taxes. States can impose such taxes – on companies engaged exclusively in interstate commerce, as well as on interstate companies engaged in local commerce—for the privilege of doing business within the state. Requirements: (1) Activity taxed must have a substantial nexus to the taxing state; (2) The tax must be fairly apportioned; (3) The tax must not discriminate against interstate commerce; (4) The tax must fairly relate to services provided by the state.

Question 99

Can states levy a tax on foreign imports?

Answer 99

No, unless there is consent from Congress. The Import-Export Clause (Article I, Section 10, Clause 2) prohibits the states from imposing any tax on imported goods, or on commercial activity connected with imported goods, UNLESS THERE IS CONGRESSIONAL CONSENT. The Commerce Clause gives Congress the exclusive power to regulate foreign commerce and thus inherently limits a state’s power to tax that commerce.

Question 100

What constitutes the Bill of Rights?

Answer 100

The First 10 Amendments of the Constitution constitute the Bill of Rights.

Question 101

Which parts of the Bill of Rights are applicable to the states?

Answer 101

The Bill is not technically applicable to the states, but most of the safeguards within it have been held to be applicable. Those safeguards in the Bill of Rights that are “essential to liberty” are applicable to the states through the 14th Amendment (Due Process Clause). These include: - the First Amendment guarantees (speech, press, assembly, right to petition, free exercise, nonestablishment of religion); - the Second Amendment (right to bear arms); - the Fourth Amendment (unreasonable search and seizure); - some elements of the Fifth Amendment (privilege against self-incrimination; compensation for taking of private property for public use) - the Sixth Amendment (speedy and public trial by impartial jury etc.) - the Eighth Amendment (cruel and unusual punishment. excessive bail and excessive fine provisions).

Question 102

Which parts of the Bill of Rights are NOT applicable to the states?

Answer 102

There are 3 provisions of the Bill of Rights that have not yet been incorporated into the Due Process Clause: (1) The 3rd Amendment prohibition against quartering troops in a person's home; (2) The 5th Amendment right to a grand jury indictment in criminal cases; and (3) The 7th Amendment right to a jury trial in civil cases.

Question 103

What does the 14th Amendment prohibit?

Answer 103

The 14th Amendment prohibits STATES from depriving any person of life, liberty, or property without DUE PROCESS and EQUAL PROTECTION of the law. This amendment is an important source of limitations on states' power over individuals, as through the Due Process Clause, most of the protections of the Bill of Rights are applicable to the states.

Question 104

What is the scope of congressional power under the 14th Amendment?

Answer 104

Section 5 of the 14th Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th Amendment. Under Section 5, Congress may NOT expand existing constitutional rights or create new ones – it may only enact laws to prevent or remedy violations of rights already recognised by the courts. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional to solving the identified violation.

Question 105

What does the 15th Amendment prohibit?

Answer 105

The 15th Amendment prohibits both STATES and the FEDERAL GOVERNMENT from denying any citizen the right to vote on account of race or colour. The 15th Amendment contains an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination. 15th Amendment legislation can be limited by other constitutional principles (BB Outline p. 103).

Question 106

How can Congress prohibit private racial discrimination under the Commerce Clause?

Answer 106

Congress may prohibit private racial discrimination in activities that might have a SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE. [Recall that under the affectation doctrine, almost any activity can be said to be connected with interstate commerce.] Example: Provisions of the Civil Rights Act bars discrimination in places of public accommodation – this a proper and valid exercise of commerce power.

Question 107

Can "state action" be found in the actions of seemingly private individuals?

Answer 107

Yes, while unconstitutional actions are generally attributed to the actions of the state (e.g., government agencies/officials), "state action" can be found in the actions of seemingly private individuals who – (1) PERFORM EXCLUSIVE PUBLIC FUNCTIONS or - Activities that are so traditionally the exclusive prerogative of the state are state action, no matter who performs them. - To date, only running a town (e.g., a "company town") and running an election for public office have been found to be such exclusive public functions. (2) HAVE SIGNIFICANT STATE INVOLVEMENT IN THEIR ACTIVITIES - State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. - State must be "significantly involved", mere acquiescence is not enough (e.g., merely granting a license is insufficient).

Question 108

What is the function of the Contract Clause?

Answer 108

The Contract Clause limits the ability of STATES to enact laws that retroactively impair contract rights. It does not affect contracts not yet made. (A) Basic Impairment Rules - Private Contracts - The Contract Clause prevents only substantial impairments of contract (i.e., destruction of most or all of a party's right under a contract). - HOWEVER, not all substantial impairments are invalid. State legislation that substantially impairs an existing private contract is invalid UNLESS the legislation (i) serves an important and legitimate public interest and (ii) is a reasonable and narrowly tailored means of promoting that interest. (B) Basic Impairment Rules - Public Contracts - Public contracts are subject to the same test above, but they will receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.

Question 109

The Contract Clause applies to...?

Answer 109

The Contract Clause applies to STATES only. It does not apply to the federal government, although a fragrant contract impairment would be forbidden by the Due Process Clause of the 5th Amendment.

Question 110

Can a state or federal government pass an ex post facto law?

Answer 110

No. Neither the state nor the federal government may pass an ex post facto law. An ex post facto law is legislation that retroactively alters the CRIMINAL law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity. Exception: Mere procedural changes in state law will not necessarily trigger the Ex Post Facto Clause. A modified law can be applied to a crime committed before the law's modification if D had notice of the possible penalty and the modified law does not increase the burden on D.

Question 111

Can a state or federal government pass bills of attainder?

Answer 111

No, both federal and state governments are prohibited from passing bills of attainder. Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial.

Question 112

Is a retroactive law (that does not violate the Contracts, Ex Post Facto or Bill of Attainder Clauses) a violation of the Due Process Clause of the Constitution?

Answer 112

Not necessarily – the question of whether such a retroactive law violates due process is a substantive due process issue. If the law does not relate to a fundamental civil right, the retroactive law should be upheld if it is rationally related to a legitimate government interest.

Question 113

What is the Due Process Clause(s)?

Answer 113

The Due Process Clauses of the 5th Amendment (applicable to the federal government) and the 14th Amendment (applicable to the states) provide that the government shall not take a person’s life, liberty, or property without due process of law. - There is a right to procedural due process only when the government acts to DEPRIVE an INDIVIDUAL of life, liberty or property (no remedy or inadequate remedies). - Only intentional or reckless (not negligent) deprivation of these rights violates the Due Process Clause. - Requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker.

Question 114

Procedural Due Process: What is "Life, Liberty and Property"?

Answer 114

The Court will determine whether a legitimate liberty or property interest is being taken. LIBERTY: A deprivation of liberty occurs if a person – (a) Loses significant freedom of action OR (b) Is denied a freedom provided by the Constitution/statute. PROPERTY: There must be a legitimate claim or "entitlement" to the benefit under state or federal law. - Examples: continued attendance at public school, welfare benefits. Nb.: the Court held previously that due process protected a "right" but not a "privilege" – this distinction has been rejected. The proper terminology now is "ENTITLEMENT".

Question 115

Procedural Due Process: What Type of Process is Required?

Answer 115

The type and extent of required procedures (e.g., timing and scope) are determined by a three-part balancing test that weighs: (1) the importance of the interest to the individual; and (2) the value of the specific procedural safeguards to that interest; against (3) the government's interest in fiscal and administrative efficiency. Generally: - Fair procedures and unbiased decisionmaker will ALWAYS be required. - Notice and chance to respond before termination of liberty or property interest are USUALLY required. [Examples, p. 116 BB Outline]

Question 116

Can due process rights be waived?

Answer 116

Yes, due process rights are subject to waiver IF the waiver is VOLUNTARY and made KNOWINGLY (with an understanding of the nature of the rights being waived).

Question 117

Must the government waive fees for indigent plaintiffs?

Answer 117

Context: there may often be a fee for government services, inc. a fee for use of courts (e.g., filing fee). FUNDAMENTAL RIGHT: Government fees MUST be waived when imposition of a fee would deny a fundamental right to the indigent. NONFUNDAMENTAL RIGHT: Fees can be imposed (no need to waive) when nonfundamental rights are involved.

Question 118

What is the "Taking" Clause?

Answer 118

The 5th Amendment prohibits governmental taking of private property "for public use without just compensation". This prohibition is applicable to the states through the 14th Amendment.

Question 119

What is the scope of "taking"?

Answer 119

"Taking" includes not only physical appropriations but also SOME government action that damages property or impairs its use (e.g., frequent flyovers by airplanes near airport). Property subject to the Taking Clause includes personal property (inc. intangibles) as well as real property.

Question 120

The "Taking" Clause: What is for "Public Use"?

Answer 120

A use will be held to be “public” as long as it is rationally related to a legitimate public purpose, e.g., health, welfare, safety, moral, social, economic, political, or aesthetic ends. Authorized takings by private enterprises are included if they redound to the public advantage (e.g., railroads and public utilities).

Question 121

The "Taking Clause": "Taking" or "Regulation"?

Answer 121

Differentiate between whether governmental action is a taking (requiring taking of just compensation) or merely a regulation (not requiring compensation). The question is one of degree. The following general guidelines apply: (a) Actual Appropriation or Physical Invasion - A taking will almost always be found if there is an actual appropriation or destruction of a person’s property or a permanent or regular physical invasion by the government or by authorization of law. - Exception: emergency situations. (b) Use Restrictions - If a government regulation denies a landowner of ALL economic use of his land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable. - Temporary denying an owner of all economic use of property does not constitute a taking per se. - Generally, regulations that merely decrease the value of the property (e.g., prohibit the most beneficial use) do not amount to a taking if they leave an economically viable use for the property. The Court considers: (1) the social goals sought to be promoted; (2) the diminution in value to the owner; and (3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

Question 122

The "Taking Clause": When municipalities condition building/development permits on a landowner's (i) conveying title to all or part of the property to the government or (ii) granting the public an easement to access the property – do such exactations constitute an uncompensated taking?

Answer 122

Yes, unless requirements are met. Such exactions constitute an uncompensated taking unless: - (1) the government can show that the condition relates to a legitimate government interest (nexus) and - (2) the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights (proportionality).

Question 123

The "Taking Clause": If property is taken by occupation or regulation without condemnation proceedings, what can the landowner do?

Answer 123

The landowner can bring an action for inverse condemnation. If the court determines that the government action amounted to a taking, the government will be required to either: (i) pay the property owner compensation for the taking OR (ii) terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (i.e., temporary taking damages)

Question 124

The "Taking Clause": What is "Just Compensation"?

Answer 124

The owner is entitled to the fair market value of her property AT THE TIME OF THE TAKING — not the value it would have if put to its highest and best use. - The measure is based on the loss to the owner, not the gain to the taker. - Increases in value to the owner's remaining property as a result of the taking are not considered.

Question 125

The "Taking Clause": What if the property is "worthless"?

Answer 125

As "just compensation" is measured by LOSS TO THE OWNER (not gain to the taker), the property that is worthless can still be subject of a taking, but no compensation needs to be paid when it is taken.

Question 126

What is SUBSTANTIAL DUE PROCESS?

Answer 126

Substantive due process guarantees that laws will be reasonable and not arbitrary. This guarantee requires the Court to review the substance of the law, rather than the procedures employed.

Question 127

What is EQUAL PROTECTION?

Answer 127

Equal protection guarantees that similarly situated persons will be treated alike. This guarantee requires the Court to review the substance of the law, rather than the procedures employed.

Question 128

What 3 standards of review does the Court use when reviewing substantive due process or equal protection guarantees?

Answer 128

Under each guarantee, the Court is reviewing the legitimacy of governmental acts. 3 standards are used: (1) STRICT SCRUTINY - Applies to regulations affecting fundamental rights (i.e., interstate travel, privacy, voting and 1st Amendment rights) OR - Applies to regulations involving suspect classifications (i.e., race, national origin, alienage) - Regulation is upheld if it is NECESSARY to achieve a COMPELLING government purpose (hard to meet - so a law examined under strict scrutiny will often be invalidated), with no less burdensome alternative. (2) INTERMEDIATE SCRUTINY - Applies to regulations involving quasi-suspect classifications (i.e., gender and legitimacy) - Regulation is upheld if it is SUBSTANTIALLY related to an important government purpose. (3) RATIONAL BASIS - Applies to regulations that do NOT: affect fundamental rights or involve suspect classifications, or quasi-suspect classifications. Therefore, applies to most legislation (e.g., age, disability, poverty). - Regulation upheld if it is rationally related to a legitimate interest (easy to meet this test - most regulations reviewed under this standard will be upheld UNLESS arbitrary or irrational). - Unlike other two tests, the burden of proof is on challenger.

Question 129

Substantive Due Process: What is the difference between the two separate clauses protecting substantive due process?

Answer 129

The Due Process Clause of the 5TH AMENDMENT applies to the FEDERAL GOVERNMENT. The Due Process Clause of the 14TH AMENDMENT applies to the STATE AND LOCAL GOVERNMENTS. The same tests are employed under each clause.

Question 130

Substantive Due Process: What review standards are applicable?

Answer 130

1. FUNDAMENTAL RIGHT - Strict Scrutiny - Where a law limits fundamental rights, strict scrutiny will be applied. The law will be upheld only if the government can prove that the action is necessary to promote a COMPELLING or OVERRIDING interest. - Fundamental rights include: right to travel, privacy, voting and all First Amendment rights. 2. ALL OTHER CASES - Mere Rationality - In all other cases, the mere rationality test is applied. The law will be upheld unless the challenger can prove that the action is not rationally related to any conceivable legitimate end of government.

Question 131

Substantive Due Process: If the government places an irrebuttable presumption against a person, would such presumption be invalid?

Answer 131

If the government “presumes facts” against a person so that she is not qualified for some important benefit or right, the irrebuttable presumption may be unconstitutional. NOTE: The Court no longer treats irrebuttable presumptions differently from other regulations or classifications. Thus, if an answer choice says "invalid because it is an irrebuttable presumption", it is likely wrong. Instead, consider whether it concerns a fundamental right, or suspect or quasi-suspect class – if it is, then likely invalid under strict and intermediate scrutiny analysis.

Question 132

Substantive Due Process: Does a regulation that fails to give fair notice violate the Due Process Clause?

Answer 132

Yes. A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is forbidden or required. A regulation that fails to give fair notice violates the Due Process Clause.

Question 133

Equal Protection: Does Equal Protection apply to the federal government?

Answer 133

In theory, no. The Equal Protection Clause of the 14th Amendment has no counterpart in the Constitution applicable to the federal government – it is limited to state action. Nevertheless, it's clear that grossly unreasonable discrimination by the federal government violates the Due Process Clause of the 5th Amendment. Thus, practically, there are really two equal protection guarantees.

Question 134

Equal Protection: What review standards are applicable?

Answer 134

The Court will apply one of the three standards when examining governmental action involving classifications of persons. NOTE: for STRICT and INTERMEDIATE scrutiny to be applied, there must be an INTENT on the part of the government to discriminate. Intent may be shown by: (i) a law that is discriminatory on its face; (ii) a discriminatory application of a facially neutral law; OR (iii) a discriminatory motive behind the law (hard to show). 1. STRICT SCRUTINY If a suspect classification or fundamental right is involved, the strict scrutiny standard will be applied and the action will be struck down unless the government proves that it is necessary to achieve a compelling interest. 2. INTERMEDIATE SCRUTINY If a quasi-suspect classification is involved, the Court will likely require the government to prove that the action is substantially related to an important government interest. 3. RATIONAL BASIS If any other classification is involved, the action will be upheld unless the challenger proves that the action is not rationally related to a legitimate government interest.

Question 135

What are SUSPECT CLASSIFICATIONS?

Answer 135

Classifications are suspect if they are based on: 1. RACE 2. NATIONAL ORIGIN or 3. ALIENAGE.

Question 136

Equal Protection and Suspect Classifications: "Benign" Government Discrimination (i.e., Affirmative Action)

Answer 136

Government action that FAVOURS racial or ethnic minorities is subject to strict scrutiny, as is government action discriminating against racial or ethnic minorities. AA permitted: Remedying Past Discrimination - If a court finds that a governmental agency has engaged in racial discrimination, it may employ a race-conscious remedy tailored to end the discrimination and eliminate its effects. - A remedy of this type is permissible under the Equal Protection Clause because it is narrowly tailored to further a compelling interest. AA may be permitted: - Even where a state or local government has not engaged in past discrimination, it may have a compelling interest in affirmative action. - However, the governmental action must be narrowly tailored to that interest (e.g., remedying past private discrimination within the governmental agency's jurisdiction is a compelling interest, but there is no compelling interest in remedying the general effects of societal discrimination)

Question 137

Equal Protection and Suspect Classifications: Alienage Classifications

Answer 137

FEDERAL CLASSIFICATION - Because of Congress's plenary power over aliens, federal alienage classifications are NOT subject to strict scrutiny. - Such classifications are valid if they are not arbitrary and unreasonable. STATE CLASSIFICATION - Generally, state/local laws on alienage are suspect classifications subject to strict scrutiny. - Exception: If a law discriminates against alien participation in state government (e.g., voting, jury service, elective office), the rational basis standard is applied.

Question 138

Equal Protection and Suspect Classifications: Are undocumented aliens suspect classifications?

Answer 138

No. Undocumented/illegal aliens are not a suspect classification. Thus, state laws regarding them are subject to a "rational basis" standard.

Question 139

What are QUASI-SUSPECT CLASSIFICATIONS?

Answer 139

(A) GENDER CLASSIFICATIONS - Must be substantially related to an important government purpose - Intentional discrimination against women generally is invalid; classifications benefiting women that are designed to remedy past discrimination generally are valid - Intentional discrimination against men is generally invalid; however certain laws have been found it substantially related to an important government interest (e.g., statutory rape laws, all-male draft) EXAM TIP: Most gender classifications are struck down. (2) LEGITIMACY CLASSIFICATIONS - Discriminatory regulations intended to punish nonmarital children (e.g., law providing a benefit to marital children but not to nonmarital children) are invalid. - Must be substantially related to an important government interest.

Question 140

Does the Constitution protect unenumerated rights?

Answer 140

Yes, the Constitution also protects certain rights not specifically mentioned in its text. Whether a right falls into the latter category depends on whether it is deeply rooted in the nation's history and tradition and essential to the concept of ordered liberty.

Question 141

Fundamental Rights: Right to Vote When are some restrictions on this right permitted (i.e., they pass strict scrutiny)?

Answer 141

1. Residency Requirements - Relatively short residency requirements restricting the right to vote (e.g., 30 days) are valid because there is a compelling interest in ensuring that only bona fide residents vote. - Laws that prohibit NON-RESIDENTS from voting are generally valid as long as they have a rational basis. 2. Identification - A state may require in-person voters to show a government-issued voter ID. Compare With (not permitted): 3. Property Ownership - Conditioning the right to vote, to be a candidate, or to hold office on property ownership is usually INVALID under the Equal Protection Clause.

Question 142

Fundamental Right: Right to Travel What is the nature of this right? i.e., what can individuals do

Answer 142

Individuals have a fundamental right to travel from state to state, which encompasses the right: (1) to leave and enter another state and (2) to be treated equally if they become permanent residents of that state.

Question 143

Fundamental Right: Right to Travel When a state uses a durational residency requirement (a waiting period) for dispensing benefits, which test should be used?

Answer 143

When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the "strict scrutiny" test. This means that the government must show that the waiting period requirement is tailored to promote a compelling or overriding interest. However, courts have not applied this clearly.

Question 144

Fundamental Right: Right to Travel Is the right to international travel a fundamental right?

Answer 144

No. Although this right appears to be protected from arbitrary federal interference by the Due Process Clause of the 5th Amendment. Test to be applied is mere rationality, not strict scrutiny. Example: the Treasury Department, with congressional authorization, could restrict travel to and from Cuba without violating 5th Amendment.

Question 145

Fundamental Right: Right to Bear Arms What is the standard of review?

Answer 145

The Court will NOT use strict scrutiny, intermediate scrutiny, or rational basis review in the 2nd Amendment context. If a regulation burdens an individual’s right to keep and bear arms, then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation. Prohibited Regulations: - In-home possession: a total ban on handgun possession in the home is unconstitutional - Carrying a handgun in public: 2nd Amendment protects the right to bear commonly used arms in public (can be subject to certain well-defined restrictions but only if Gov can show that the regulation is supported by historical tradition) - Discretionary licensing regime (known as "may issue" regime) is unconstitutional Acceptable Regulations - "Shall Issue" Regimes: Some “shall-issue” licensing regimes (that is, regimes in which authorities must issue licenses whenever applicants satisfy certain threshold requirements) are constitutionally sound. - "Sensitive Places": It is permissible to prohibit the carrying of arms in certain “sensitive places,” such as legislative assemblies, courthouses, schools, and polling places, but arms may not be banned in urban areas broadly.

Question 146

The First Amendment prohibits...

Answer 146

The First Amendment prohibits: - prohibits Congress from establishing a religion - prohibits Congress from interfering with the free exercise of religion - prohibits Congress from abridging the freedoms of speech and press - prohibits Congress from interfering with the right of assembly These prohibitions are applicable to the states through the 14th Amendment.

Question 147

Free Speech Clause: Does it permit the Government to regulate private speech?

Answer 147

No, the Free Speech Clause RESTRICTS government regulation of private speech. Regulations/laws doing so will be subject to scrutiny.

Question 148

Free Speech Clause: Does it implicate government speech?

Answer 148

Government speech (e.g., government funding?) does not implicate the First Amendment – it therefore is not subject to the various levels of scrutiny that apply to government regulation of private speech. THE TEST INSTEAD: Generally, government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest.

Question 149

Free Speech Clause: Content v Conduct Regulation

Answer 149

A regulation seeking to forbid communication of specific ideas (i.e., a content regulation) is less likely to be upheld than a regulation of the conduct incidental to speech. Different standards are used to assess the validity of a regulation within each category. CONTENT - It is presumptively unconstitutional for the government to place burdens on speech because of its content. Subject to STRICT SCRUTINY. - To justify such content-based regulations, the government must show that the regulation is NECESSARY to serve a COMPELLING state interest and is narrowly drawn to achieve that end. - Exceptions: unprotected categories of speech (e.g., obscenity, defamation and "fighting words") - Content-neutral speech regulations generally are subject to intermediate scrutiny. CONDUCT - The Court has allowed the government more leeway in regulating the conduct related to speech, allowing it to adopt content-neutral, time, place, and manner regulations.

Question 150

Free Speech Clause: Does the First Amendment provide individuals with a special right to trespass?

Answer 150

The First Amendment does not provide individuals (or, for that matter, the press) with any special right to trespass, even if the trespass was done in order to exercise one’s First Amendment rights.

Question 151

Free Speech Clause: Reasonableness of Regulation

Answer 151

(A) Overbroad Regulation - Invalid - A regulation will not be upheld if it is overbroad, i.e., prohibits substantially more speech than is necessary. (B) Regulation is Vague - Invalid - Known as the "void for vagueness" doctrine. - If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause. - Avoids the chilling effect a vague law might have on speech. - Government funding speech activity? Greater imprecision is allowed. (C) Cannot Give Officials Unfettered Discretion - A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. - This issue usually arises under licensing schemes established to regulate the time, place, and manner of speech. - If a statute gives licensing officials unbridled discretion, it is VOID ON ITS FACE.

Question 152

Free Speech Clause: Scope of Speech

Answer 152

(A) Includes Freedom NOT To Speak - Includes the right to refrain from speaking or endorsing beliefs with which one does not agree – the Gov may not compel an individual personally to express a message with which he disagrees. - States cannot use public accommodation statutes to deny speakers the right to choose the content of their own messages (see: same-sex wedding web-design case). (B) Includes Symbolic Conduct - Speech includes not only verbal communication, but also conduct that is undertaken to communicate an idea. - Not all regulation of symbolic conduct will be prohibited. The Court WILL uphold a conduct regulation if: (1) the regulation is within the constitutional power of the government, (2) it furthers an important government interest, (3) the government interest is unrelated to suppression of speech and (4) the incidental burden on speech is no greater than necessary. (C) Includes Certain Expressive Services - 1st Amendment protections cover all persons engaged in expressive conduct, including those who seek profit.

Question 153

Free Speech: A regulation concerning the activities of prison inmates will be upheld if...?

Answer 153

A regulation concerning the activities of prison inmates, including any First Amendment speech activities, is governed by a different standard in order to facilitate prison order (lower standard?). The regulation will be upheld if it is REASONABLY related to LEGITIMATE PENOLOGICAL INTERESTS.

Question 154

Free Speech: The extent to which the government may regulate speech-related conduct on government property depends on what?

Answer 154

Depends on whether the property is: - a public forum - a designated public forum - a limited public forum or - a nonpublic forum

Question 155

Free Speech and Assembly: Public Forums vs Designated Public Forums

Answer 155

PUBLIC FORUMS - Public property that has historically been open to speech-related activities (inc. the Internet) is called a public forum. DESIGNATED PUBLIC FORUMS - Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent/limited basis, by practice or policy, is called a designated public forum (e.g., school rooms that are open for after-school use by social or civic groups).

Question 156

Free Speech and Assembly: Public Forums and Designated Public Forums - Regulation Standards

Answer 156

The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations. Government regulations of speech and assembly in public forums and designated public forums must: (i) Be content neutral (i.e., subject matter neutral and viewpoint neutral); - Regulation that is on location and manner of speech may be permitted (ii) Be narrowly tailored to serve an important government interest; AND (iii) Leave open alternative channels of communication. NOTE: Even if a regulation meets the above conditions, it might still be struck down on other grounds (e.g., overbreadth, vagueness, unfettered discretion). EXAMPLES OF VALID REGULATION: - Regulation for "Buffer Zones" outside abortion clinics. - Regulation against Targeted Residential Picketing

Question 157

Free Speech and Assembly: Limited Public Forums and Nonpublic Forums - Regulation Standards

Answer 157

Public properties that are not public forums or designated public forums are limited public forums (e.g., government property opened up for a specific speech activity, such as a school gym opened on a particular night to host a debate on a particular community issue) or a non-public forum. The government can regulate speech in such forums to reserve them for their intended use. Government regulations of speech and assembly in limited public forums and nonpublic forums will avoid strict scrutiny if they are: (i) Viewpoint neutral; and - Need NOT be content neutral (i.e., the government may allow speech regarding some subjects but not others), but must be viewpoint neutral (i.e., may not limit the presentation to only one view). (ii) Reasonably related to a legitimate government purpose - Regulation of speech and assembly in nonpublic forums need only be rationally related to a legitimate governmental objective. EXAMPLES OF VALID REGULATION - Military bases: on-base speech and assembly may be regulated - Schools: speech and association in schools may be reasonably regulated to serve the school's educational mission / school officials conclude that the speech will materially + substantially disrupt work and discipline at the school

Question 158

Free Speech: Unprotected Speech Can there be regulations/punishments based on content?

Answer 158

Yes. However, restrictions on the content of speech must be NECESSARY to achieve a COMPELLING government interest. The following is a list of the only reasons for which the Court has allowed content-based restrictions on speech (i.e., categories of unprotected speech): (a) Inciting imminent lawless action (b) Fighting Words (c) Obscenity (d) Defamation (e) Commercial speech that proposes unlawful activity or is fradulent/misleading (f) Government can demonstrate a "compelling interest" in limitation of the First Amendment activity.

Question 159

Unprotected Speech: Clear and Present Danger of Imminent Lawlessness

Answer 159

Speech can be burdened if it creates a clear and present danger of imminent lawless action. It must be shown that: - the imminent illegal conduct is LIKELY and - the speaker intended to cause it. EXAMPLES: - Speech causing demonstrable danger to important government interests, i.e., US intelligence operations

Question 160

Unprotected Speech: "Fighting Words"

Answer 160

(A) True Threats [related to "Fighting Words"] - The 1st Amendment does not protect "true threats" – statements meant to communicate an intent to place an individual or group in fear of bodily harm (e.g., a state may ban cross-burning given its long history of impending violence). - There needs to be some understanding that their threats were of a threatening nature – a mental state of recklessness is sufficient. (B) Words Likely to Incite Physical Retaliation - States are free to ban the use of “fighting words,” i.e., those personally abusive epithets that, when addressed to the ordinary citizen, are inherently likely to incite immediate physical retaliation. IN PRACTICE: - Statutes that attempt to punish fighting words will tend to be overbroad or vague, e.g., "opprobrious words", "annoying conduct", "abusive language" – such statutes would fail. - The Supreme Court generally will not tolerate fighting words statutes with restrictions that are designed to punish only certain viewpoints (i.e., proscribing fighting words only if they convey a particular message).

Question 161

Unprotected Speech: Obscenity

Answer 161

Obscenity is not protected speech. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person, applying CONTEMPORARY COMMUNITY STANDARDS: (i) Appeals to the prurient interest in sex; (ii) Portrays sex in a patently offensive way; and (iii) Does not have serious literary, artistic, political, or scientific value—using a national, reasonable person standard, rather than the contemporary community standard. Note: - The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. - The Court has suggested that the state may regulate the display of certain material, to prevent it from being so obtrusive that an unwilling viewer cannot avoid exposure to it. - Private possession of obscenity at home cannot be made a crime because of the constitutional right of personal privacy (exception: child pornography).

Question 162

Unprotected Speech: Defamatory Speech

Answer 162

If the defamatory statement is about a PUBLIC OFFICIAL / PUBLIC FIGURE or involves PUBLIC CONCERN, the plaintiff needs to prove all the elements of defamation plus FALSITY and some degree of FAULT (1st Amendment restrictions remain; harder tests for plaintiff when plaintiff is public official/figure or involves issue of public concern). Falsity + Fault tests differ from common law tests. FALSITY - The plaintiff must prove by clear and convincing evidence that the statement was false (cf. common law: defamatory statement presumed to be false, D has to assert truth as an affirmative defence). FAULT - A plaintiff in a public figure or public concern case must prove fault on the part of the defendant (cf. common law: D who has no reason to know that the statement he was making was false could still be liable). - A public official may not recover for defamatory words relating to his official conduct or a matter of public concern without clear and convincing evidence that the statement was made with “ACTUAL MALICE” (knowledge that statement was false + reckless disregard).

Question 163

Unprotected Speech: Certain Commercial Speech

Answer 163

Commercial speech in general DOES have some 1st Amendment protections. However, commercial speech that violates regulations against false and deceptive advertising, or proposes unlawful activity, may be burdened. Any other regulation of commercial speech will be upheld only if it (i.e., defeats 1st Amendment): (i) Serves a substantial government interest; (ii) Directly advances that interest; and (iii) Is narrowly tailored to serve that interest (does not require that the "least restrictive means" be used, rather there must be a reasonable fit between the legislation's end and the means chosen).

Question 164

Are complete bans on truthful advertising likely to be struck down by the Supreme Court?

Answer 164

Yes. Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring. Thus, the Court has struck down total bans against advertising: (i) Legal abortions; (ii) Contraceptives; (iii) Drug prices; (iv) Attorneys’ services; and (v) Liquor prices.

Question 165

Free Speech Clause: Prior Restraints

Answer 165

A prior restraint is a court order or administrative system that keeps speech from occurring (e.g., a licensing system, a prohibition against using mails, an injunction). Prior restraints are NOT FAVOURED. Courts prefer to allow speech and then punish it if it was unprotected. However, permitted if government can show that some SPECIAL SOCIETAL HARM will otherwise result. Court also requires that certain procedural safeguards be included in any system of prior restraint: (i) the standards must be narrowly drawn, reasonable and definite; (ii) an injunction must be promptly sought; and (iii) there must be prompt and final determination of the validity of the restraint. Examples of "special societal harm": - National security reasons - Preserving fair trial - Military circumstances - Obscenity - Court has also held that prior restraint is permissible where the parties have contractually agreed to the restraint.

Question 166

Free Speech Clause: Does the press have a right to publish truthful information about a matter of public concern? When does it lose this right?

Answer 166

Yes, it has this right. This right applies even when the information has been unlawfully obtained, as long as (1) the speech relates to a matter of public concern and (2) the publisher did not obtain it unlawfully or know who did and (3) the original speaker's privacy expectations are low. This right CAN BE RESTRICTED only by a sanction that is narrowly tailored to further a state interest of the highest order.

Question 167

Freedom of Association and Belief: Is the right to associate for expressive purposes absolute?

Answer 167

No. The right to join together with other persons for expressive or political activity is protected by the 1st Amendment – however, the right to associate for expressive purposes is NOT ABSOLUTE. This right may be infringed to serve a COMPELLING GOVERNMENT INTEREST: - unrelated to the suppression of ideas - cannot be achieved through means significantly less restrictive of associational freedoms - the infringement would not significantly affect an association's right to express its viewpoints. In certain cases, more lenient standards will apply.

Question 168

Freedom of Association and Belief: How may laws regulating the ELECTORAL PROCESS impact on 1st Amendment rights of speech, assembly and association?

Answer 168

The Supreme Court will use a balancing test in determining whether a regulation of the electoral process is valid: - If the restriction on First Amendment activities is severe, it will be upheld only if it is narrowly tailored to achieve a compelling interest. - If the restriction is reasonable and nondiscriminatory, it generally will be upheld on the basis of the states' important regulatory interests. Examples of VALID electoral regulations: - Requiring a reasonable number of signatures to get on the ballot. - Enforcing a party rule requiring a voter to be registered with a political party to vote in the party's primary. - Allowing political parties to choose nominees for state judgeships at state conventions. - Prohibiting individuals from appearing on the ballot as the candidate of more than one party. Examples of INVALID electoral regulations: - Prohibiting a party from endorsing or opposing candidates in a primary. - Regulating party selection of delegates to national convention.

Question 169

Freedom of Speech and Association: Can a government employer punish a government employee's speech?

Answer 169

Yes. The government often requires persons who accept government jobs to submit to loyalty oaths and refrain from certain conduct (e.g., campaigning). Such regulations often impact upon the freedom of speech and association. A government employer may punish a government employee for speech or speech-related activities when: (A) Speech Made Pursuant to Official Duties - The speech is made on the job and pursuant to the employee's official duties. This is true even if the speech touches on a matter of public concern. (B) Other Speech ("Public Concern" Test) - If the speech is NOT made pursuant to official duties, it depends on whether the speech made involves a MATTER OF PUBLIC CONCERN. - If a government employee’s speech does NOT involve a matter of public concern, the courts give the government employer a wide degree of deference and allow the employer to punish the employee if the speech was disruptive of the work environment. - If a matter of public concern IS involved, courts must 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 efficient performance of public service.

Question 170

Freedom of Speech and Association: The federal government may require employees and other public officers to take loyalty oaths. However, such oaths would not be upheld if they are...?

Answer 170

Such oaths will not be upheld if they are: (A) OVERBOARD/OVERBREADTH (i.e., prohibit constitutionally protected activities) or (B) VAGUENESS - vague so that they have a chilling effect on First Amendment activities.

Question 171

Freedom of Association: Must a government employee disclose all her associations (e.g., every organisational membership)?

Answer 171

No, she does not have to. The state cannot force every prospective government employee to disclose every organizational membership. Such a broad disclosure has insufficient relation to loyalty and professional competence, and the state has available less drastic means to achieve its purpose. The state may inquire only into those activities that are relevant to the position. If the candidate fails to answer relevant questions, employment may be denied. Also applies to charitable disclosures.

Question 172

Freedom of Religion: What does the Free Exercise Clause prohibit?

Answer 172

The Free Exercise Clause prohibits the government from punishing (denying benefits to, or imposing burdens on) someone on the basis of the person’s religious beliefs. Not settled as to whether the rule is absolute, i.e., a total prohibition of such government actions. In any case, the Supreme Court has NEVER found an interest that was so "compelling" that it would justify punishing a religious belief.

Question 173

Freedom of Religion: The Free Exercise Clause requires states to act with Religious N______?

Answer 173

The Free Exercise Clause requires states to act with religious neutrality. Even if a state law is neutral toward religion on its face (such as a law requiring businesses not to discriminate on the basis of sexual orientation), evidence that a state’s action with respect to the law was based on a negative view of a person’s religious beliefs can result in a violation of the Free Exercise Clause. (e.g, disparaging comments made by state civil rights commission member re baker who refused to bake wedding cake for same-sex couple; did not act with neutrality).

Question 174

Freedom of Religion: Can the Free Exercise Clause be used to challenge government regulation?

Answer 174

No, UNLESS the regulation was specifically designed to interfere with religion. Example: a law that prohibits the precise type of animal slaughter used in a ritual by a particular religious sect is unconstitutional.

Question 175

Freedom of Religion: Does the Free Exercise Clause require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct?

Answer 175

No. A law that regulates the conduct of ALL people can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law. There have been exceptions/exemptions: (a) Ministers - Religious organizations must be granted an exemption from suits alleging employment discrimination by ministers against their religious organizations. Imposing an unwanted minister would violate the Free Exercise Clause. (b) Unemployment Cases - A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons (i.e., work or conditions of work conflict with tenets of the worker's religion). (c) Right of Amish Not to Educate Children - The Supreme Court has granted the Amish an exemption from a law requiring compulsory school attendance until age 16, based on the Free Exercise Clause and the fundamental right to educate one's children.

Question 176

Freedom of Religion: What does the Establishment Clause prohibit?

Answer 176

The Establishment Clause prohibits the government sponsorship of religion, meaning that the government cannot aid or formally establish a religion. General Principles: (a) The government may not directly or indirectly coeerce individuals to exercise (or refrain from) exercising their religion. (b) Government action that PREFERS one religious sect over others violates the Establishment Clause – at least is such action is not necessary to achieve a compelling interest. (c) In determining whether a particular action will be seen as sponsorship of religion, the Supreme Court has indicated it will consider historical practices and the understandings of the Founding Fathers. Broadly speaking, the Establishment Clause cases can be grouped into four categories: (1) Cases preferring one religious sect over others; - Government action that prefers one religious sect over others violates the Establishment Clause, at least if such action is not necessary to achieve a compelling interest. (2) A limited group of cases unconnected to financial aid or education; - In cases unconnected to financial aid or education, a good rule of thumb is that government action favoring or burdening religion or a specific religious group in particular will be invalid, but a law favoring or burdening a larger segment of society that happens to include religious groups will be upheld. - Long-accepted government practices that touch on religion will usually NOT be found to violate the Establishment Clause (e.g., legislative prayer). (3) Cases involving financial aid to religiously affiliated institutions; and - A statute authorising government aid to a religiously affiliated institution (e.g., hospital, school) must also pursue a course of neutrality toward religion. (4) Cases concerning religious activities in public schools. - School-sponsored religious activity is invalid, but school accommodation of religion is valid. - e.g., if a public school allows members of the public and private organizations to use school property when classes are not in session, it cannot deny a religious organization permission to use the property for meetings merely because religious topics will be discussed.