Outline

Question 1

State Action - Generally

Answer 1

The State Action Doctrine provides that the application of constitutional rights only applies to government actions.

Question 2

State Action - Private Entities

Answer 2

Private entities are not required to comply with the Constitution (Civil Rights Cases)

Question 3

State Action - Public Functions Exception

Answer 3

Private entities must comply with the Constitution if it is performing a task that has been traditionally and exclusively done by the government (Marsh v. Alabama)

State Action Found:
“Company-owned” town (Marsh v. Alabama)
Private party holding preprimary election (Terry v. Adams)
Use of private property as public park (Evans v. Newton)

No State Action Found:
Utility service that was “extensively regulated” (Jackson v. Metropolitan Edison Co.)
Operation of private shopping center (Lloyd Corp. v. Tanner; Hudgens v. NLRB)

Question 4

State Action - Entanglement Exception

Answer 4

Private entities must comply with the Constitution when the government affirmatively authorizes, encourages, or facilitates unconstitutional action.

State Action Found:
Enforcing racially restrictive covenant (Shelley v. Kraemer)
Issuing prejudgment writ of attachment for creditor (Lugar v. Edmonson Oil)
Private parking business that is located in a state-owned public facility (Burton v. Wilmington Parking Authority)
Funding discriminatory private school (Norwood v. Harrison)
Neutral stance that would allow discrimination to occur in the sale and rental of private housing (Reitman)

No State Action Found:
State issuance of liquor license for private club (Moose Lodge v. Irvis)
Private nursing home that received Medicaid funding (Blum v. Yaretsky)
Private school that received federal funding (Rendell-Baker v. Kohn)

Question 5

State Action - Entwinement Exception

Answer 5

Private entities must comply with the Constitution if the private entity is overborne by the pervasive entwinement of public institutions and public officials.

State Action Found:
Association that regulates high school sports: (i) which most public schools belonged; (ii) governing body was made up mostly of public school officials; (iii) whose meetings were held during school hours; (iv) whose employees could join the state retirement system; and (v) which is funded by gate receipts from high school sports events (Brentwood Academy v. Tennessee Secondary School Athletic Association)

State Action Not Found:
NCAA, which is a nationwide voluntary association of private and public universities that establishes rules regarding collegiate supports; cannot be sued for urging a college to suspend coach for recruiting violations (NCAA v. Tarkanian)

Question 6

State Action - Federal and State Statutes

Answer 6

State law can require that private conduct meet the same standards the Constitution requires (e.g. Civil Rights Act)

Question 7

Justiciability Doctrines

Answer 7

There are five major justiciability doctrines:

1. the prohibition against advisory opinions,
2. standing,
3. ripeness,
4. mootness, and
5. the political question doctrine.

All must be met for any federal court to hear a case.

Question 8

Justiciability - Advisory Opinions

Answer 8

The Court will not render an advisory opinion to Congress or the President on the constitutionality of some contemplated action or legislation because such an opinion does not involve a “case or controversy.”

A case is justiciable so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy. (Nashville v. Wallace)

Question 9

Constitutional Standing - Elements

Answer 9

To establish standing, a plaintiff must have a significant personal stake in the resolution of the controversy, which means the plaintiff must demonstrate:

1. an injury in fact,
2. causation, and
3. redressability

Question 10

Injury in Fact - Generally

Answer 10

The injury in fact must be an invasion of a legally protected interest that is (a) concrete and particularized (Lujan v. Defenders of Wildlife), and (b) the injury must be actual or imminent rather than hypothetical (City of LA v. Lyons).

Question 11

Causation - Generally

Answer 11

There must also be a causal connection between the injury and conduct complained of, such that the injury is fairly traceable to the defendant’s conduct (Allen v. Wright).

Causal Connection Found:
Plaintiff challenge to federal law limiting liability of utility companies in event of nuclear accident; but for the act, the plants would not be built (Duke Power Co. v. Carolina Environment Study Group)

No Causal Connection Found:
Challenge to IRS tax exempt policy for racially discriminatory private schools, could not show personal injury from the policy or that it was the cause of the schools discrimination. (Allen v. Wright)

Question 12

Redressability - Generally

Answer 12

Plaintiff must demonstrate the relief he is entitled to will substantially eliminate or redress the injury. (Warth v. Seldin; Linda R. S. v. Richard D.)

No Redressability Found:
Plaintiff’s challenge to zoning ordinance that did not allow multi-family/affordable housing to be built, could not show that if the ordinance was lifted, they would be built (Warth v. Seldin)
Mother’s challenge to state refusal to enforce a criminal law that required fathers to pay child support, no proof it would properly redress her lack of support (Linda R. S. v. Richard D.)

Question 13

Standing - Generally

Answer 13

Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication.

Question 14

Prudential Standing - Generally

Answer 14

The Court has identified two major prudential standing principles:

1. A party generally may only assert his or her own rights and cannot raise the claims of third parties not before the court.
2. A plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers.

Question 15

Prudential Standing - Third Party Claims

Answer 15

A party generally may only assert his or her own rights and cannot raise the claims of third parties not before the court.

However, a litigant may have third-party standing to bring suit on behalf of a third party if:

1. there exists a close relationship between the parties, and
2. there are genuine obstacles to the third party suing on his/her own behalf (Singleton v. Wulff)

Standing Found:
Doctor challenged a state law excluding Medicaid benefits for abortions not medically required (Singleton v. Wulff)
White man suing on behalf of blacks for racially restrictive covenant (Barrows v. Jackson)
Bartender sued on behalf of male patrons for law not allowing men to drink until 21 (Craig v. Boren)

No Standing Found:
Mother seeking to file writ of habeas corpus for son on death row, but son had not appealed (Gilmore v. Utah)

Question 16

Prudential Standing - Generalized Grievances

Answer 16

A plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers. (US v. Richardson)

Standing Found:
Challenge to government expenditures to private religious institutions in violation of the Establishment Clause of the First Amendment. (Flast v. Cohen)

No Standing Found:
Suit to compel CIA to disclose information regarding its expenditures (US v. Richardson)

Question 17

Ripeness - Generally

Answer 17

A plaintiff must establish that the harm has occurred or will imminently occur (Abbot Labs v. Gardner).

A plaintiff is generally not be entitled to review of a state law before it is enforced (Poe v. Ullman).

Ripe for Review:
Challenge to act requiring different drug-labelling, to take effect in the near future, upheld because it was inevitable they’d have to comply (Abbot Labs v. Gardner)
Challenge to a state law prohibiting discharge of sewage from boats (Lake Carriers Assn. v. MacMullan)

Not Ripe for Review:
Challenge to state statute prohibiting giving advice for use of contraceptives, but where state had not enforced (Poe v. Ullman)
Resident aliens seeking declaratory judgment on question of if they go to work in Alaska whether they will be let back into the U.S., found merely hypothetical (International Longshoremen’s and Warehousemen’s Union, Local 37 v. Boyd)
Challenge to federal law prohibiting federal employees from taking part in political campaigns, found merely hypothetical (United Public Workers v. Mitchell)

Question 18

Mootness - Generally

Answer 18

A plaintiff must present a live controversy at all stages of federal court litigation. If anything occurs while a lawsuit is pending to end the plaintiff’s injury, the case is to be dismissed as moot. (Defunis v. Odegaard)

Question 19

Mootness Exception - Wrongs Capable of Repetition but Evading Review

Answer 19

A case is not moot if the issue is capable of repetition yet evading review; meaning, where a party could be subject to the same conduct again and it would be unable to be resolved because of the short duration of the action (Moore v. Ogilvie; Roe v. Wade)

Moot:
Equal protection challenge to law schools admission; man was allowed to attend and was graduating by time case reached Court (Defunis v. Odegaard)

Not Moot:
Challenge to state law that required 25,000 votes to nominate a candidate (Moore v. Ogilvie)
Challenging state law prohibiting abortion (Roe v. Wade)

Question 20

Mootness Exception - Voluntary Cessation

Answer 20

A case is not moot if the defendant voluntarily ceases the complained of conduct but is free to return to it at any time.

A defendant claiming that his voluntary cessation renders a case moot bears the burden of showing that it is absolutely clear the allegedly harmful conduct could not reasonably be expected to recur. (Friends of the Earth v. Laidlaw)

Not Moot:
Holder of NPDES permit was violating mercury discharge limits but ceased conduct (Friends of the Earth v. Laidlaw)

Question 21

Political Question - Generally

Answer 21

A federal court will not decide political questions. The Court has held that constitutional interpretation in these areas should be left to the politically accountable branches of government (the President and Congress).

Question 22

Political Question - Examples

Answer 22

Non-justiciable Political Questions:
Suit challenging the President’s conduct of foreign policy for rescinding a treaty (Goldwater v. Carter)
Former Chief Judge’s suit challenging Senate impeachment process (Nixon v. US)
Claims of political gerrymandering (Vieth v. Jubelirer)

Not Political Question (Justiciable):
Congress’ denial of allowing Senator to take his seat was found to not be textually committed to House to resolve, so matter could be heard (Powell v. McCormack)
Malapportionment brought under the equal protection clause (Baker v. Carr)

Question 23

Congressional Action - Generally

Answer 23

Congress may act only if there is an express or implied authority in the Constitution.

States may act unless the Constitution prohibits the action.

The Constitution grants Congress broad authority under the Necessary and Proper Clause to use any means necessary to carry out an end that is within its express or implied authority (McCulloch v. Maryland; US v. Comstock).

Question 24

Commerce Clause - Generally

Answer 24

Congress shall have the power… to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes

Only gives Congress the power to regulate existing commercial activity; Congress cannot compel activity, even if it affects interstate commerce (Sebelius mandate)

In Gibbons v. Ogden, the Court defined “commerce” as every aspect of commercial intercourse which involves two or more states.

Question 25

Commerce Clause - Substantial Effect on Interstate Commerce

Answer 25

When regulating intrastate activity, the Court will uphold the regulation if it is an economic or commercial activity and there is a rational basis upon which Congress concluded that the activity in aggregate, substantially affects interstate commerce (Gonzales v. Raich) Examples: Home grown wheat could be regulated (Wickard v. Filburn) Possessing a gun is not an economic activity, and cannot be regulated (US v. Lopez) Cannot regulate gender-based crimes because they are not economic activities (US v. Morrison)

Question 26

Commerce Clause - Limits of Regulation

Answer 26

While broad, there are limits to what specific activity can be regulated. US v. Lopez clarified what Congress’ power under the Commerce Clause entails: 1. Regulate the use of channels of interstate commerce; 2. Regulate and protect the instrumentalities of interstate commerce, including the power to regulate persons or things in interstate commerce; and 3. Regulate those activities that have a substantial effect on interstate commerce.

Question 27

Commerce Clause - 10th Amendment Limitation

Answer 27

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people Valid Enforcement: Application of Fair Labor Standards Act to public transportation (Garcia v. San Antonio MTA) Invalid Enforcement: Requiring states to take title to radioactive waste unconstitutional (NY v. US) Requiring state and local LEO’s to conduct background checks on handgun permit applicants unconstitutional (Printz v. US)

Question 28

Taxing and Spending Clause - Generally

Answer 28

Generally, Congress has the power to tax and spend for the general welfare (US v. Butler). Congress can condition receipt of federal funding on states enacting certain regulations, so long as: 1. it is for the general welfare; 2. the conditions for receiving the funding are unambiguous and expressly stated; 3. there is a nexus between the condition and the federal interest; and 4. it does not violate any other constitutional provision (South Dakota v. Dole). Allowed: Withholding 5% of highway funds if drinking age wasn’t 21 (South Dakota v. Dole) Not Allowed: Taking away Medicaid funding for not implementing expansion in Obamacare; too coercive (Sebelius)

Question 29

§5 of the 14th Amendment

Answer 29

§5 of the 14th Amendment gives Congress the power to enforce, by appropriate legislation, the provisions of the 14th Amendment (Congressional Power of Enforcement) Congress is limited to enacting only remedial legislation necessary to enforce and prevent violations, they cannot use §5 as a means for defining or expanding rights. (City of Boerne v. Flores) Remedial measures taken must be congruent and proportional to a widespread and persistent deprivation (Kimel v. FL Board of Regents)

Question 30

11th Amendment - Generally

Answer 30

The Judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Question 31

11th Amendment - When Suits Against States are Permitted

Answer 31

1. If it is a suit against a state officer brought in federal court; 2. If the State has waived its 11th Amendment immunity and consents to being sued; or 3. Congress may abrogate state sovereign immunity if: a. it unequivocally expresses its intent to abrogate a state’s immunity; and b. it acts pursuant to a valid grant of constitutional authority (Seminole Tribe of FL v. FL) Examples: Suit against a state as remedial measure allowable if it is in response to a widespread and persistent deprivation of a constitutional right (Kimel v. FL Board of Regents; Board of Trustees, U of AL v. Garrett) Can allow suit under Title II for direct violations of 14th Amendment (US v. Georgia) Allowing suit under ADA for failure to provide adequate means to access courts, upheld because access to court is a fundamental right (TN v. Lane) Cannot allow citizens to sue state in state court (Alden v. Maine)

Question 32

Executive Action - Generally

Answer 32

The Executive Power is vested in the President by Article II. Where the President acts without an express Constitutional grant of power, his actions fall within the inherent executive powers. Youngstown Sheet and Tube v. Sawyer delineated three “zones” of inherent presidential power which guide the Court in determining whether the President’s actions are permissible.

Question 33

Justice Jackson Presidential Zones of Power - Zone 1

Answer 33

Zone 1: When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate Acts are only held unconstitutional under these circumstances, if the federal government as an whole lacks power in the area

Question 34

Justice Jackson Presidential Zones of Power - Zone 2

Answer 34

Zone 2: When the president acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers; “twilight” zone for presidential powers No general rule as to the constitutionality of actions that fall into this area The more Congress acquiesces, the more it enables, if not invites the acts

Question 35

Justice Jackson Presidential Zones of Power - Zone 3

Answer 35

Zone 3: When the president takes measures incompatible with the express or implied will of Congress; “low ebb” of his powers Because the president is disobeying federal law, actions undertaken will be allowed only if the law enacted by Congress is unconstitutional.

Question 36

Delegation of Power - Non-delegation Doctrine

Answer 36

Principle that congress may not delegate its legislative power to administrative agencies Delegation declared unconstitutional when Congress delegates its powers to the President or his agencies without providing policy standards and guidance for the delegated powers. (Panama Refining Co. v. Ryan)

Question 37

Delegation of Power - Demise of Non-Delegation

Answer 37

In Whitman v. American Trucking Assoc., the Supreme Court held that delegation of legislative power was constitutional so long as Congress provides “intelligible principles” to guide an agency in its exercise of discretion

Question 38

Executive - Legislative Veto Power

Answer 38

In INS v. Chadha, the Supreme Court held a legislative veto which does not require bicameralism and presentment to the President was unconstitutional Congress cannot grant to the president line-item veto power because procedures for enacting and vetoing laws are expressly stated in the Constitution and any changes to such processes must be by constitutional amendment (Clinton v. City of New York)

Question 39

Executive - Appointment

Answer 39

Article II, §2 empowers the President, with the advice and consent of the Senate, to appoint “all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States However, Congress may vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Question 40

Executive - Removal

Answer 40

As to removal, the Constitution is silent. Generally, the Supreme Court has held that the President may remove executive officials (Myers v. US) Congress cannot reserve for itself the power to remove an executive officer except through impeachment (Bowsher v. Syner)

Question 41

Executive - Removal Limitations

Answer 41

Congress can limit the President’s removal power by requiring good cause be shown before removing any other executive appointees (Morrison v. Olsen) Congress can limit the President’s power to remove inferior officers who are intended to operate independently from the President (Humphrey’s Executor v. US; Weiner v. US) Congress cannot impose a double layer of protection of removal because it prevents the President from “taking care that the laws be faithfully executive” (Free Enterprise Fund)

Question 42

Executive - Matters of Foreign Policy

Answer 42

The President retains broad authority and substantial discretion in the conduct of foreign affairs (US v. Curtis-Wright) Treaties The President is empowered to make treaties with foreign nations with the advice and consent of 2/3 the Senate. Under the Supremacy Clause, treaties confirmed by the Senate are “the supreme law of the land.” Executive Agreements The President, with the implicit approval of Congress, has the power to settle claims of United States citizens against foreign governments through an executive agreement. President Carter’s agreement with Iran to lift a freeze on Iranian assets in return for American hostages upheld (Dames and Moore v. Regan)

Question 43

Executive - War on Terrorism

Answer 43

A United States citizen designated and detained as an enemy combatant has a due process right to challenge the underlying factual support for that designation before a neutral arbitrator. (Hamdi v. Rumsfeld) Detainees are not barred from seeking habeas or invoking the Suspension Clause simply because they had been designated as enemy combatants or held at Guantanamo Bay. (Boumediene v. Bush) The President, as Commander in Chief, has power to create military tribunals; however, only unlawful enemy combatants may be brought in front of military tribunals without violating due process (Ex parte Quirin)

Question 44

Executive Privilege

Answer 44

Executive privilege is not a constitutional power - it is regarded as an inherent privilege necessary to protect the confidentiality of presidential communications. Therefore, presidential documents and conversations are presumptively privileged. The privilege is not absolute and will be waived when relevant and necessary for the fair administration of criminal justice. (US v. Richard Nixon)

Question 45

Executive - Immunity

Answer 45

The President has absolute immunity from civil damages based on any actions done in his official capacity as President (Nixon v. Fitzgerald) The President has no immunity from private suits based on unofficial acts taken before becoming president (Clinton v. Jones) Air force analyst could not sue Nixon for firing him during presidency (Nixon v. Fitzgerald) Jones could sue Clinton for sexual harassment claim while he was governor (Clinton v. Jones)

Question 46

Preemption - Federal and State Law

Answer 46

The Supremacy Clause of the Constitution provides that the Constitution and other federal laws shall be the supreme law of the land. When there is a conflict between federal and state law, the federal law will control and the state law is invalidated (or preempted) because federal law is supreme. There are two major situations where preemption occurs: 1. where federal law expressly preempts state or local law or 2. where preemption is implied.

Question 47

Express Preemption

Answer 47

Occurs when a federal law expressly states that it preempts any state or local law (Lorillard Tobacco)

Question 48

Implied Preemption - Generally

Answer 48

Occurs when Congress does not expressly preempt any state law but manifests its intent to do so. There are 3 types of implied preemption: 1. Conflict Preemption 2. Obstruction Preemption 3. Field Preemption

Question 49

Implied Preemption - Conflict Preemption

Answer 49

If federal and state law are mutually exclusive, so that a person cannot comply with both, the state law will be preempted. A federal law that sets a minimum standard does not preempt a stricter state law. (FL Lime v. Dept. of Agriculture of CA)

Question 50

Implied Preemption - Obstruction Preemption

Answer 50

Even if a federal and state law are not mutually exclusive, a state law will be preempted if it interferes with attaining a federal legislative goal of safety. CA law that imposed a moratorium on the construction of nuclear power plants for economic reasons was not preempted by federal law because Congress’ goal was to ensure safety and the state’s goal was economic. (PGE v. State Energy Resources Conserv. and Dev. Commission)

Question 51

Implied Preemption - Field Preemption

Answer 51

A state law will be preempted if it there is a clear congressional intent to have a federal law occupy the field in an area. A state law will be preempted when, even though the state law does not directly conflict with federal law, the state law complements, or is an obstacle to, the regulatory system chosen by Congress in a field completely occupied by Congress. (Arizona v. US)

Question 52

Dormant Commerce Clause - Generally

Answer 52

Where Congress has not enacted laws regarding interstate commerce, states may regulate the local aspects of interstate commerce so long as the regulations: 1. do not discriminate against out-of-state competition to benefit local interests (HP Hood v. Du Mond), and 2. are not unduly burdensome, meaning the burden on interstate commerce does not outweigh the local benefit of imposing the law (Southern Pacific Co. v. Arizona).

Question 53

Dormant Commerce Clause - Facially Discriminatory Laws

Answer 53

Laws that clearly draw a distinction between in-staters and out-of-staters (City of Philadelphia v. New Jersey – prohibited waste from other states) State law prohibiting sale of minnows procured within state waters outside the state held invalid (Hughes v. Oklahoma) A facially discriminatory law will be upheld only if necessary to achieve an important purpose (e.g. health/safety) and it is the least restrictive means used to achieve that purpose (Maine v. Taylor) State law requiring milk in state to be pasteurized w/in 5 miles invalid b/c it was for local benefit and minimal safety hazards and less restrictive means to control (Dean Milk v. City of Madison)

Question 54

Dormant Commerce Clause - Facially Neutral Laws

Answer 54

Laws which: 1. are motivated by a desire to help state interests at the expense of other states or 2. have a discriminatory impact against those from other states (Hunt v. WA State Apple Commission; West Lynn Creamery v. Healy) State law requiring all apples shipped in-state bear USDA grades held invalid because practical effect was discriminating against other states who graded differently (more strict) (Hunt) Law that taxed all milk sales of those in-state and out, but gave proceeds to in-state dairy farmers held invalid because it was to help in-state interests (West Lynn Creamery) State law prohibiting oil companies from operating gas stations in state upheld because it did not burden interstate commerce and dormant Commerce Clause protects the interstate market, not particular interstate companies (Exxon v. Maryland)

Question 55

Dormant Commerce Clause - Balancing Test for Nondiscriminatory Laws

Answer 55

If a law is nondiscriminatory, the presumption is in favor of upholding the law. The law will be invalidated only if it is found to be unduly burdensome, meaning, the burden placed on interstate commerce outweighs the benefit to the local interests the law serves (Loren Pike v. Bruce Church) State law required cantaloupes be packaged in state before transported out-of-state, invalid because it burden on commerce (building packaging facility) far outweighed local benefit (Loren Pike v. Bruce Church) State law requiring trucks have contoured mud flaps held invalid because the burden on all trucks exceeded the marginal safety benefit (Bibb v. Navajo Freight)

Question 56

Dormant Commerce Clause - Congressional Exception

Answer 56

Acceptable if Congress confers upon the states the ability to restrict the flow of interstate commerce. This is because Congress has plenary power to regulate commerce among the states A state law that imposed a retaliatory tax on out-of-state insurers doing business in CA was upheld because Congress, by federal statute, expressly authorized states to adopt discriminatory laws against insurance companies. (Western and Southern Life Insurance)

Question 57

Dormant Commerce Clause - Market Participant

Answer 57

The dormant Commerce Clause does not apply where a state acts as a market participant, such as when it acts as a state-owned business rather than a regulator. State-owned cement plant gave preference to in-state purchasers during a recession when it could not place orders - upheld (Reeves v. William Stake) State-funded construction project requiring 50% workers be natives of Boston, upheld because state became market participant (White v. MA Council of Construction) Exception: a state acting as a market participant cannot attach downstream conditions to a sale that would discriminate against interstate commerce (South-Central Timber Development v. Commissioner)

Question 58

Dorment Commerce Clause - Analysis

Answer 58

If the law is facially discriminatory, then it will be struck down unless it is for public health and safety, and no less restrictive means to regulate exists If the law is facially neutral/nondiscriminatory, then a court will use the Balancing Test (Undue burden on interstate commerce vs. Local benefit of the law)

Question 59

Privileges AND Immunities Clause

Answer 59

Article IV provides: “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Prohibits discrimination by a state against nonresidents of the state when the discrimination concerns fundamental rights or important economic privileges. State law imposing extremely high commercial fishing license to nonresidents invalid because no substantial reason for it and it impedes right to pursue a livelihood (Toomer v. Witsell) State law imposing higher hunting fee to nonresidents valid because hunting was “recreational” not pursuit of livelihood (Lester Baldwin)

Question 60

Privileges AND Immunities - Allowable Restrictions

Answer 60

May restrict rights of non-state citizens only if: 1. There is a substantial justification for the discriminatory treatment, and 2. The discrimination bears a substantial relationship to the state’s objectives (Supreme Court of NH v. Piper)

Question 61

Privileges OR Immunities Clause

Answer 61

14th Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” Right to travel - has been interpreted as protecting citizens’ right to travel and to be treated equally as those citizens that reside in the state. State could not limit welfare benefits of first year residents because it did not treat them equally as citizens of the state (Saenz v. Roe)

Question 62

Privileges AND/OR Immunities Analysis

Answer 62

1. Is a state discriminating against out-of-staters? - If yes, then Privileges AND Immunities clause If the law burdens a fundamental right and there is no substantial reason, then it will be struck down 2. Is a state discriminating against its own citizens? - If yes, then Privileges OR Immunities clause

Question 63

Incorporation of the Bill of Rights through the 14th Amendment

Answer 63

By its terms, the Bill of Rights is not applicable to the states; however, the Supreme Court has subsequently held that most provisions of the Bill of Rights apply to the states through the Due Process Clause of the 14th Amendment. Second amendment right to keep and bear arms applies to state (McDonald v. City of Chicago)

Question 64

Incorporation of the Bill of Rights through the 14th Amendment - Unincorporated Provisions

Answer 64

There are four provisions that have not been incorporated: 1. Third Amendment right to not have soldiers quartered in a person’s home 2. Fifth Amendment right to a grand jury indictment in criminal cases 3. Seventh Amendment right to a jury trial in civil cases 4. Eighth Amendment prohibition against excessive fines

Question 65

Equal Protection - Generally

Answer 65

The Equal Protection Clause contained in the 14th Amendment states “… no State shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws.” While there is no counterpart in the Constitution applicable to the federal government, it has been applied under the Due Process Clause of the Fifth Amendment. Whether a law violates equal protection depends on whether a classification exists; if one does, the government action will be upheld only if it meets the level of scrutiny required

Question 66

Intermediate Scrutiny

Answer 66

To be constitutional, the law must be substantially related to an important governmental interest. The burden is generally on the government to prove that the law in question passes intermediate scrutiny. The government must defend the interests it stated when the law was enacted, not just some conceivable legitimate interest. Intermediate scrutiny is used when a classification is based on gender or status as a nonmarital child (legitimacy).

Question 67

Rational Basis Review

Answer 67

A law passes the rational basis standard of review if it is rationally related to a legitimate governmental interest. It is not required that there is actually a link between the means selected and a legitimate objective. Laws are presumed valid, and the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. The rational basis standard is used in all cases in which one of the higher standards (intermediate or strict scrutiny) does not apply, and applies to laws drawing distinctions based on age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons.

Question 68

Rational Basis with Bite

Answer 68

Occurs when the Court does not want to make a class ‘suspect’ or raise it to heightened scrutiny, yet still hold laws are arbitrary and unreasonable Colorado amended its constitution to make any law passed that protected homosexuals unconstitutional; invalid because bears no legitimate purpose other than to discriminate (Romer v. Evans)

Question 69

Levels of Scrutiny - Under/Over-inclusiveness

Answer 69

Under/over-inclusiveness laws are acceptable for rational basis review, but not for strict/intermediate scrutiny.

Question 70

Suspect Classifications - Generally

Answer 70

Government action that intentionally discriminates against racial or ethnic minorities is “suspect” and thus subject to “strict scrutiny.” Under strict scrutiny, a classification will be held to violate equal protection unless found to be necessary to promote a compelling state interest. A classification is “necessary” when it is narrowly tailored so that no alternative, less burdensome means is available to accomplish the state interest. Suspect classifications requires strict scrutiny analysis of any government action that discriminates against certain classes, including: 1. Race 2. National Origin/Alienage 3. Religion

Question 71

Suspect Classifications - Proving the Existence of the Classification

Answer 71

Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive.

Question 72

Suspect Classifications - Facially Discriminatory

Answer 72

A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face. Example: An ordinance states that only males will be considered for a city’s training academy for firefighters.

Question 73

Suspect Classifications - Facially Neutral, but with a Discriminatory Application

Answer 73

A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated. Example: A city’s ordinance concerning the police academy says nothing about gender, but in practice only men are considered for admission.

Question 74

Suspect Classifications - Discriminatory Motive

Answer 74

A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause. (Arlington Heights v. Metropolitan Hous. Dev. Corp.)

Question 75

Suspect Classifications - School Integration

Answer 75

Only intentional segregation in schools violates the Equal Protection Clause. If a school board does not take steps to eliminate intentional racial segregation of schools, a court can order the district to implement measures, such as busing, to remedy the discrimination. Court-ordered busing is temporary, however, and must be terminated once the “vestiges of past discrimination” have been eliminated.

Question 76

Suspect Classifications - Affirmative Action

Answer 76

Programs that favor racial or ethnic minorities are subject to strict scrutiny. The governmental entity must be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects. Race may be used as a soft factor in admission to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body. The use of racial quotas or of race as a determinative criterion, however, violates equal protection and is unconstitutional. Grutter v. Bollinger; Gratz v. Bollinger.

Question 77

Suspect Classifications - Racial Gerrymandering

Answer 77

Race may not be the predominant factor in determining the boundary lines of legislative districts

Question 78

Suspect Classifications - Alienage

Answer 78

1. Federal classification - Under Article I, a federal alienage classification is likely valid unless it is arbitrary and unreasonable. Example: Medicare regulations may require a five-year residency period for eligibility despite thereby excluding many lawful resident aliens. (Matthews v. Diaz) 2. State classifications - The Court will generally apply the strict scrutiny test and strike down state laws that discriminate against aliens, such as laws prohibiting aliens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs.

Question 79

Suspect Classifications - Alienage Exceptions

Answer 79

1. Participation in Government Functions State laws that restrict or prohibit an alien’s participation in government functions need only have a rational relationship to a legitimate state interest. 2. Undocumented aliens Undocumented aliens are not a suspect class, but the states may not deny primary or secondary public education benefits to undocumented aliens.

Question 80

Quasi-Suspect Classifications - Generally

Answer 80

Subject to intermediate scrutiny. Applies to gender and legitimacy. Intentional discrimination through gender classification will generally be struck down. However, there have been some instances of discrimination against men being upheld because of the important governmental interest: i. Draft registration of males, but not females ii. A statutory rape law that held only men criminally liable for such conduct

Question 81

Equal Protection Clause - Classification Analysis

Answer 81

1. Identify the classification 2. Identify the level of scrutiny required 3. Articulate whether the government has met the level of scrutiny required to uphold the law

Question 82

Contracts Clause - Generally

Answer 82

Article I, §10 of the Constitution: “… no State shall pass any law impairing the obligation of contracts” Applies only if a state or local law interferes with an existing contract. However, they can affect future contracts.

Question 83

Contracts Clause Exception - Interference with Private Contracts

Answer 83

A state may interfere with an existing private contract where: 1. The law does not substantially impair a party’s contractual rights, 2. The state’s interests are significant and legitimate, and 3. The law is reasonably related to achieving its goals Example: Kansas enacted a state law precluding natural gas suppliers from charging contractually agreed prices and Court found it did not “substantially impair” the gas suppliers obligations. (Energy Reserves Group v. Kansas Power and Light)

Question 84

Contracts Clause Exception - Interference with Government Contracts

Answer 84

Subject to the same elements as interference with private contracts, but subject to more careful review and heightened scrutiny. It will only be upheld if it is both reasonable and necessary to serve the government purpose. NY and NJ enacted legislation that prohibited use of toll revenue in subsidizing RR passenger services so to assure bondholders that toll funds would go to paying their debt; then NY and NJ passed a law repealing that law, found unconstitutional (US Trust Co.) HEWITT NOTE: where a state is trying to advantage itself (self-dealing), strike it down

Question 85

Contracts Clause Exception - Economic Substantive Due Process

Answer 85

1. Death of Economic Substantive Due Process: Where economic regulation does not implicate an additional fundamental right, it is permitted so long as rational basis found (US v. Carolene Product) 2. Revival: - Due process clause used to strike down punitive damages awards that are grossly excessive (BMW v. Gore; State Farm) - Bar punitive damages awards based on harm to third parties not involved in litigation (Philip Morris)

Question 86

Takings Clause - Generally

Answer 86

5th Amendment: “… nor shall private party be taken for public use without just compensation” Bars the government from forcing someone to bear the burden (applies to both state and federal governments)

Question 87

Takings Clause - Physical Taking

Answer 87

Physical Taking - any permanent physical occupation authorized by the government constitutes a taking (Loretto)

Question 88

Takings Clause - Regulatory Taking

Answer 88

Regulatory Taking - occurs when a government regulation leaves no economically viable use of the property (Lucas – law did not allow any building). Exceptions: (1) the law is abating a nuisance; or (2) the regulation depriving all economically viable use is temporary and the surrounding circumstances for the deprivation are reasonable (Tahoe-Sierra Preservation Council) ``` Not a Regulatory Taking - Government action that results in reduction in property value, so long as reasonably economic viable use remains (Penn Central – landmark preservation denied permit to build skyscraper atop terminal) The government is destroying one class of property to preserve another that is of greater value to public (Miller v. Schoene) ```

Question 89

Takings Clause - Land Use Regulations

Answer 89

Not a taking so long as: 1. there is a nexus between condition placed by the government and the legitimate state interest (Nollan), and 2. the adverse impact on the proposed development is roughly proportional to the loss caused to the property owner from the condition placed (Dolan) Nollan v. CA Coastal Commission: the Supreme Court held that a state law requiring a permit for building with condition that landowners grant public easement to on beachfront did not have proper nexus to a government interest because prior to the expansion, interest was for public views of the beach Dolan v. City of Tigard: the Supreme Court held that a permit to expand business being conditioned on landowner requiring a floodplain to create public greenway and bike path in order to prevent flooding was excessive and not proportional to loss caused to the property owner

Question 90

Takings Clause - Public Use

Answer 90

Court defines public use expansively such that almost anything can meet the requirement; so long as the government reasonably believes that it will benefit the public (Hawaii Housing Authority v. Midkiff; Kelo v City of New London) State law that took land from private owners and sold to other lessees to dilute number of landowners, upheld (Midkiff) Taking home to sell to private developer to promote economic development (Kelo)

Question 91

Takings Clause - Just Compensation

Answer 91

Just compensation is measured in terms of loss to the owner of the property. The gain to the taker is irrelevant (Brown v. Legal Aid) Loss is equal to the market value at the time of the taking

Question 92

Takings Clause - Standing

Answer 92

Claim for taking is not limited to persons who held title at the time the restriction was imposed (Palazzolo)

Question 93

Takings Clause - Analysis

Answer 93

1. Is there a taking? - Possessory: always a taking - Regulatory: not a taking, unless no viable economic value remains 2. Is it for public use? 3. Is just compensation being provided?

Question 94

Fundamental Rights - Generally

Answer 94

The Supreme Court has held that some liberties/rights are so important that they are deemed to be fundamental rights. The government cannot infringe upon them unless strict scrutiny is met. Most of the fundamental rights are not mentioned in the Constitution (except the right to vote).

Question 95

Fundamental Rights - Overview of Protections

Answer 95

Almost all fundamental rights are protected through either the Due Process Clause of the 5th and 14th Amendment or the Equal Protection Clause of the 14th Amendment. 1. If the law denies the right to everyone, use due process clause analysis 2. If the law denies the right to some, while allowing it to others: a. A discriminatory challenge, then use equal protection clause analysis b. A violation of the right challenge, then use due process clause analysis

Question 96

Fundamental Rights - Types

Answer 96

1. Right to Family Autonomy a. Right to marry and divorce b. Right to custody of one's own children c. Right to keep family together d. Right to control the upbringing of children 2. Right to Reproductive Autonomy a. Right to procreate b. Right to buy and use contraceptives c. Right to abortion 3. Right to Medical Care Decisions a. Right to refuse treatment b. Exception for vaccinations 4. Right to Privacy of Sexual Activities 5. Right to Vote 6. Right to Access Courts 7. Right to Travel

Question 97

Fundamental Rights - Right to Abortion

Answer 97

The right to an abortion is a qualified right a. Roe v. Wade: a woman has a fundamental right to obtain an abortion b. Planned Parenthood v. Casey, the government may restrict the right so long as the regulations do not impose an undue burden on the woman’s ability to choose before the fetus attains viability. Once a fetus is viable, no longer have a right to an abortion unless it is necessary to protect the life of the mother.

Question 98

Fundamental Rights - Right to Travel

Answer 98

There is a fundamental right to travel and to interstate migration within the U.S. (Saenz v. Roe)

Question 99

Fundamental Rights - No Fundamental Right Existing

Answer 99

1. Assisted suicide 2. Travel outside the U.S. 3. Control your information 4. Education

Question 100

Fundamental Rights - Analysis

Answer 100

1. Is there a fundamental right? a. The judiciary will defer to the legislature unless there is discrimination against a discrete and insular minority OR infringement of a fundamental right (Carolene Products) 2. Has the right been infringed? a. Burdening the exercise of a fundamental right becomes an infringement requiring the application of strict scrutiny. The court considers the directness and substantiality of the interference 3. Is there a sufficient justification for the government’s infringement? a. If a right is fundamental, the government must present a compelling interest to justify its infringement i. Where a right is not fundamental, need only present a legitimate interest 4. Is the means sufficiently related to the purpose? a. The law must be necessary to achieve the compelling purpose. b. The government could not attain the goal through any means less restrictive of the right.

Question 101

Procedural Due Process - Generally

Answer 101

The Due Process Clause of the 5th and 14th Amendments prevents the government (federal and state) from depriving any person of “life, liberty, or property” without due process of law. Procedural due process requires the government to provide adequate procedures—usually notice and chance to be heard—before it takes away a person’s life, liberty, or property.

Question 102

Procedural Due Process - Deprivation Generally

Answer 102

The Due Process Clause protects against arbitrary government action; it does not protect against invasions by private actors.

Question 103

Procedural Due Process - Liberty

Answer 103

Not just merely a right to not be unreasonably restrained, it also encompasses the right to contract, to work, to learn, to marry, to establish a home and raise children, to worship as one desires, and those privileges long recognized as essential to the pursuit of happiness.

Question 104

Procedural Due Process - Property

Answer 104

Property: two ways the courts define a “property interest” 1. If the state law creates a reasonable expectation of to the receipt of a benefit, regardless of the importance. 2. If there is an important benefit to the individual, regardless of the content of the law, then it might be a property interest.

Question 105

Procedural Due Process - Due Process of Law

Answer 105

When the government must provide due process, it must always supply certain basic safeguards such as notice of the charges or issues, the opportunity for a meaningful hearing, and an impartial decision maker Mathews v. Eldridge established the Three-Part Balancing Test: [Importance of Interest] x [Benefit of Procedures] > [Burden on Government]

Question 106

Procedural Due Process - Analysis

Answer 106

1. Has there been a deprivation? 2. If so, is it one of life, liberty, or property? 3. Has due process of the law been afforded?