

Article III grants what types of authority?
4 justiciability doctrines
Standing requirements
Injury types and requirements

Standing, ripeness, mootness, political
question
1.
2.
3.
4.
injury
causation and redressability
no 3rd party standing
no generalized grievances

Types of injuries (Violations of
common law rights, torts, breaches
of contracts, invasion of property
rights, violation of constitutional
rights)
Plaintiffs only may assert injuries
that they personally have suffered
Plaintiffs seeking injunctive or
declaratory relief must show a
likelihood of future harm


Causation and redressability
The authority for judicial review
The authority for review of federal
laws and executive actions
The authority for review of state
courts and state government actions
*Plaintiff must show that defendant caused
injury so that a favorable court decision is
likely to remedy the injury
*Federal courts have no advisory opinion
power
Exceptions to 3rd party standing
1. Exception: third party standing is
allowed if there is a close
relationship between the plaintiff
and the injured third party (Doctorpatient for abortion rights,
Barkeeper-customer law)
2. Exception: third party standing is
allowed if the injured third party is
unlikely to be able to assert his or
her own rights(Criminal defendants
have third party standing to raise
rights of prospective jurors to be free
from discrimination in juror
selection)
3. Exceptions: an organization may sue
for its members, if –



No generalized grievances – rule and
exception
1. The plaintiff must not be suing
solely as a citizen or as a taxpayer
interested in having the government
follow the law
2. Exception: taxpayers have standing
to challenge government
expenditures as violating the
Establishment Clause (Very narrow
exception – taxpayers lack standing
to challenge governmental property
grants to religious institutions)

Ripeness OR May federal court allow preenforcement review of statute or regulation?
The members would have standing
to sue
The interests are germane to
organizations purposes
Neither the claim nor relief requires
participation of individual members

The hardship that will be suffered
without pre-enforcement review
The fitness of the issues and the
record for judicial review
Events after filing of the lawsuit end the
plaintiffs the case shall be dismissed as
moot
Mootness – Rule and Exception
1. Exception: wrong capable of
repetition but evading review
2. Exception: voluntary cessation
3. Exception: class action suits
Allegations of constitutional violations that
court will not get involved in:


What is a political question and give
examples



The "republican form of government
clause"
The process for ratifying
constitutional amendments
Challenges to the President’s
conduct of foreign policy
Challenge to Carter’s recession of a
treaty
Challenges to the impeachment and
removal process
*If a state court decision rests on 2 grounds,
one state and one federal, if the Supreme
Court’s reversal of the federal law ground
will not change the result in the case, the
Independent and Adequate State Grounds
Supreme Court cannot hear it
*If unclear whether adequate state court
ground, Supreme Court will assume that
there is none and hear the case
Fed. Courts won’t hear suits against states
BUT will hear:
Abstention
Exceptions to no federal police power
Necessary and proper clause
Taxing and spending power
Commerce Power
1. Suits against state officers are
allowed (State officers may be sued
for injunctive relief, State officers
may be sued for money damages to
be paid out of their own pockets,
State officers may not be sued if it is
the state treasury that will be paying
retroactive damages)
2. Waiver is permitted
3. States may be sued pursuant to
federal laws adopted under section 5
of the 14th amendment. Congress
cannot authorize suits against states
under other congressional provisions
NOTE: state governments may not be sued
in state courts, even on federal law claims
without their consent
Have jurisdiction but will not exercise it
Federal courts may not enjoin pending state
court proceedings
MILD: Military, Indian Lands, Lands
(federal) and District of Columbia
*Congress may take all actions to carry out
authority
*McCulloch v. Maryland – Congress may
chose any means not inconsistent with
Constitution to carry out authority
Congress may tax and spend for the general
welfare BUT
Congress may not adopt other laws just by
saying they serve the general welfare
1. Congress may regulate the channels
of interstate commerce
2. Congress may regulate the
instrumentalities of interstate
commerce and persons or things in
interstate commerce
3. Congress may regulate activities that
have a substantial effect on interstate
commerce


10th amendment



Congress’ power under §5 of the 14th
Amendment
Delegation of powers
Treaties
The 10th Amendment as a limit on
Congressional powers. The 10th
amendment states that all powers not
granted to the United States, nor
prohibited to the states, are reserved
to the states or the people
Congress cannot compel state
regulatory or legislative action
Congress can not force states to
administer federal mandate
Congress can put strings on grants so
long as conditions are explicitly
stated
Congress may prohibit harmful
commercial behavior by state
government
Congress may not expand the scope of
rights under §5 of the 14th Amendment:
Congress only may provide additional
remedies for rights recognized by the courts
No limit exists on congress’ ability to
delegate legislative power to executive
agencies or even to the judiciary BUT
Legislative veto and line item veto are
unconstitutional and Congress may not
delegate executive power to itself or its
officers
Treaties are agreements between the US and
a foreign country that are negotiated by the
President and are effective when ratified by
the Senate
Priority
1. Treaties prevail over conflicting
state laws
2. If a treaty conflicts with a federal
statute, the one adopted last in time
controls
3. If a treaty conflicts with the US
Constitution it is invalid
Executive Agreements
Appointment Power
Definition – an executive agreement is an
agreement between the US and a foreign
country that is effective when signed by the
President and the head of the foreign nation,
Do not require Senate approval, Executive
agreements can be used for any purpose,
Never has any agreement been invalidated
Priority
Executive Agreements prevail over
conflicting state laws, but never over
conflicting Federal laws or the constitution
 The president appoints ambassadors,
federal judges and officers of the
US; Senate must confirm
 Congress may vest the appointment
of inferior offices in the President,
the heads of departments or the
lower federal courts
 Congress may not give itself or its
officers the appointment power
Unless removal is limited by statute, the
President may fire any executive branch
office.
BUT:
Removal Power
Impeachment and Removal
1. For Congress to limit removal, it
must be an office where
independence from the President is
desirable
2. Congress can not prohibit removal of
cabinet members
3. Where Congress cannot prohibit
removal, it can limit removal to
where there is good cause
The President, the Vice president federal
judges and officers of the United States can
be impeached and removed from the office
for treason or for high crimes and
misdemeanors
** Impeachment does not remove a person
from office
** Impeachment by the House of Reps
requires a majority vote; conviction in the
Senate 2/3 vote

President – 1 immunity, 1 privilege and 2
powers



The president has absolute immunity
to civil suits for money damages for
any actions while in office.
However, the president does not
have immunity for actions that
occurred prior to taking office BUT
No immunity for acts that occurred
prior to taking office
The President has executive
privilege for the presidential papers
and conversations, but such privilege
must yield to other important
governmental interests
The President has power to pardon
those accused or convicted of federal
crimes
Commander in Chief – leader of
armed forces
3 types:
Preemption
Implied preemption
1. express preemption
2. implied preemption
3. states may not tax or regulate federal
government activity
1. If federal and state law are mutually
exclusive, federal law preempts state
law
2. If state law impedes the achievement
of a federal objective, federal law
preempts state law
3. If Congress expresses a clear intent
to preempt state law, federal law
preempts state law
State and local laws are unconstitutional if
Dormant commerce clause definition
they place an undue burden on interstate
commerce
Anti discrimination provision which
The privileges and immunities clause of
Limits ability of state to discriminate against
Article IV
out of staters
Always a wrong answer unless the question
The privileges or immunities clause of the involves a right to travel
14th amendment
No state shall deny any citizen the P/I of US
citizenship

Analysis if the state law does not
discriminate
Analysis if the law discriminates against
out-of-staters
State and local taxation of interstate
commerce
Which statutes may be used by Congress to
apply constitutional norms to private
conduct?

The privileges and immunities
clause of Article IV does not apply
If the law burdens interstate
commerce, it violates the dormant
commerce clause if it burdens
exceed its benefits
If the law burdens interstate commerce, it
violates the dormant commerce clause
unless it is necessary to achieve an
important government purpose
Exception: Congressional approval
Exception: Market participant exception
If the law discriminating against out-ofstaters with regard to their ability to earn a
livelihood, it violates the privileges and
immunities clause of Article IV unless it is
necessary to achieve an important
government purpose
ALSO:
Corporations and aliens cannot use the
privileges and immunities clause
Citizen means individuals with US
citizenship
The discrimination must be necessary to
achieve an important government purpose
1. States may not use their tax system
to help in-state businesses
2. A state may only tax activities if
there is a substantial nexus to the
state
3. State taxation of interstate
businesses must be fairly
apportioned
1. The 13th amendment can be used to
prohibit private race discrimination
2. The commerce power can be used to
apply constitutional norms to private
conduct
3. Congress cannot regulate private
conduct through §5 of the 14th
Amendment
Exceptions where private conduct must
comply with constitution
Application of Bill of Rights
Amendments NOT incorporated
Rational basis test
Intermediate scrutiny
** The public function exception. The
Constitution applies if a private entity is
performing a task traditionally exclusively
done by the government
** The entanglement exception. The
constitution applies if the government
affirmatively authorizes, encourages, or
facilitates unconstitutional activity
The Bill of Rights applies directly only to
the federal government
The Bill of Rights is applied to states and
local governments through the incorporation
into the due process clause of the 14th
amendment
2nd amendment right to bear arms
3rd amendment right to not have soldiers
quartered in your home
5th amendment right to grand jury
indictment in criminal cases
7th amendment right to jury trial in civil
cases
8th amendment right against excessive fines
Rationally related to a legitimate
government purpose
Substantially related to an important
government purpose



government has burden of proof
Only look to actual goal that court
finds
Uncertain if least restrictive
alternative analysis is a necessity
here
Upheld only if necessary to compel a vital
government interest
Strict scrutiny



government has burden of proof
means must be necessary – least
restrictive alternative IS used here
most exacting review
Procedural Due Process Definitions
1. A deprivation of liberty occurs if
there is the loss of a significant
freedom provided by a statute
(before civil commitment; parent
institutionalize child – screening by
neutral fact finder; harm to
reputation is not loss of liberty;
prisoners rarely have liberty interest)
2. a deprivation of property occurs if
there is an entitlement (reasonable
expectation to continued receipt of a
benefit) and the entitlement is not
fulfilled (year-to-year contract does
not give you due process)
Generally there must be intentional
government action or ate least reckless
Is government negligence sufficient to state action for liability to exist. However, in
a claim under due process clause?
emergency, government is liable under due
process only if conduct shocks the
conscience
Generally the government’s failure to
Is failure to protect give rise to claim? protect people from privately inflicted
harms does not deny due process
1. balance the importance of the
interest to the individual
2. the ability of additional procedures
to increase the accuracy of the fact
Test for procedure required under due
finding
process
3. government interest in
administrative efficiency (cost
factor)
Examples of when procedure is required
Substantive due process definition
Protection for economic liberties
5th Amendment Takings Clause Test
1. Before welfare benefits can be
terminated there must be notice and
a hearing
2. When SS disability benefits are
terminated there must be a POST
termination hearing
3. When a student is disciplined by a
public school there must be notice of
the charges and an opportunity to
explain
4. Before parent’s right to custody of a
child can be permanently terminated
there must be notice and a hearing
5. Punitive damages require
instructions to jury and judicial
review to ensure reasonableness
6. except in exigent circumstances,
prejudgment attachment and seizure
of assets requires notice and a
hearing (does not require an innocent
owner defense to government
forfeiture)
Is there an adequate reason for the
government violating the persons life,
liberty, or property?
Only a rational basis test is used for laws
affecting economic rights
1. Is there a taking? Possessory taking
(always a taking) or regulatory
taking (no reasonable economically
viable use of the property) (Penn
Central v. Lucas)
2. Is it for public use? So long as
government act of reasonable belief
that taking will benefit the public
(HHA v. Midkiff)
3. is just compensation paid? Measured
in terms of loss to the owner in
reasonable FMV terms
government conditions on development use
of the property must be justified by a benefit
Dollan Test for benefit compared to burden that is roughly proportionate to the burden
imposed; otherwise it is a taking (Dollan v.
City of Tigard)
1. Applies only to state or local
interference with existing contracts
(Never applies to federal
government; Only if interfering with
already existing contracts)
2. State and local government's may
interfere with private contracts must
meet intermediate scrutiny TEST:
Substantial impairment of contract
rights; Reasonably and narrowly
tailored means of promoting an
Contracts Clause
important and legitimate public
interest
3. State or local interference with
government contracts must meet
strict scrutiny
4. The ex post facto clause does not
apply in civil cases. Retroactive civil
liability only need meet a rational
basis test
Privacy umbrella – fundamental rights
1. The right to marry
2. The right to procreate
3. The right to custody of one’s
children
4. The right to keep the family together
5. The right to control the upbringing
of one’s children
6. The right to purchase and use
contraceptives
7. The right to abortion
8. The right to refuse medical treatment
9. No right to physician-assisted
suicide
10. No right to private, consensual
homosexual activity
The right to abortion includes:
The right to refuse medical treatment
approach to equal protection questions
1. Prior to validity, states may not
prohibit abortions, but may regulate
abortions so long as they do not
create an undue burden on the ability
to obtain abortions. After viability,
states may prohibit abortions unless
necessary to protect woman’s health
or life (24hr waiting period is not an
undue burden; requirement of
abortions by licensed physicians is
not undue burden; prohibition of
partial birth abortions is undue
burden)
2. The government has no duty to
subsidize abortions or provide
abortions in public hospitals
3. Spousal consent and notification
laws are unconstitutional
4. Parental notice and consent laws for
unmarried minors. A state may
require parental notice and/or
consent for an unmarried minor’s
abortion so long as it creates an
alternative procedure where a minor
can obtain an abortion by going
before a judge who can approve the
abortion by finding it would be in
the minor’s best interest or that she
is mature enough to decide for
herself
1. Competent adults have the right to
refuse medical treatment, even life
saving medical treatment
2. A state may require clear and
convincing evidence that a person
wanted treatment terminated before
it is ended
3. A state may prevent family members
from terminating treatment for
another
What is the classification?
What level of scrutiny should be applied?
Does this law or action meet the level of
scrutiny(rule)?
*The equal protection clause of the 14th
amendment applies only to state and local
governments (Never applies to federal
Constitutional provisions concerning equal government)
protection
*Equal protection is applied to the federal
government through the due process clause
of the 5th amendment (Not literally in
constitution)
Test for racial classifications
Use strict scrutiny


How is the existence of a racial
classification proven?

How should racial classifications benefiting
minorities be treated?
Gender Classifications
The classification exists on the face
of the law
If the law is facially neutral, proving
a racial classification requires
demonstrating both discriminatory
impact and discriminatory intent
(Discriminatory impact alone is not
enough)
Example: discriminatory use of
preemptory challenges denies equal
protection
1. Strict scrutiny is applied
2. Numerical set-asides require clear
proof of past discrimination
3. Educational institutions may use
race as one factor in admissions
decisions to help minorities
4. Seniority systems may not be
disrupted for affirmative action
Intermediate scrutiny should be used – must
have exceedingly persuasive justification for
the classification


How is the existence of a gender
classification proven?



How should gender classifications
benefiting women be treated



Alienage Classifications




Discrimination against non-marital children
Rational basis review is used for all other
types of discrimination under the
Constitution
The classification exists on the face
of the law (Craig v. Boren)
If the law is facially neutral, proving
a gender classification requires
demonstrating both discriminatory
impact and discriminatory intent
Example – discriminatory use of
preemptory challenges denies equal
protection
Intermediate scrutiny
Gender classifications benefiting
women that are based on role
stereotypes will not be allowed
Gender classifications that are
designed to remedy past
discrimination and differences in
opportunity will be allowed
Generally strict scrutiny is used
Only a rational basis test is used for
alienage classifications that concern
self government and the democratic
process (voting, jury, being a police
officer, teacher, or probation officer,
but for notary public – strict
scrutiny)
Only a rational basis test is used for
Congressional discrimination against
aliens
It appears that intermediate scrutiny
is used for discrimination against
undocumented alien children
Intermediate scrutiny is used
Laws that deny a benefit to all nonmarital children but grant it to all
marital children are unconstitutional
1.
2.
3.
4.
5.
age discrimination
disability discrimination
wealth discrimination
economic regulation
sexual orientation
discrimination


The right to travel



The right to vote


The right to education
Content based v. content neutral restriction
Laws that prevent people from
moving into a state must meet strict
scrutiny
Durational residency requirements
must meet strict scrutiny (50 days is
the longest durational residence
requirement)
Restrictions on foreign travel need
meet only the rational basis test
Laws that deny some citizens the
right to vote must meet strict
scrutiny
One person-one vote must be met for
all state and local elections
At large elections are constitutional
unless there is proof of a
discriminatory purpose
The use of race in drawing election
district lines must meet strict
scrutiny
There is NO fundamental right to education
1. Content based restrictions generally
have to meet strict scrutiny
(Application of law depends on the
content of the message, strict
scrutiny must be met)
2. Subject matter restriction (ability to
engage in speech depends on its
topic)
3. Viewpoint restriction (Depends on
the ideology of the message)


Prior restraint


Vagueness definition
Overbreadth definition
Fighting Words
Symbolic Speech
Judicial order for an administrative
system that stops speech before it
occurs
Court orders suppressing speech
must meet strict scrutiny.
Procedurally proper court orders
must be complied with until they are
vacated or overturned (collateral bar
rule – violation of ct order stops
person from challenging
constitutionality of order)
Gag orders on press to stop
prejudicial pretrial publicity will not
be allowed
The government can require a
license for speech only if there is an
important reason for licensing and
clear criteria leaving almost no
discretion to the licensing authority.
Licensing schemes must contain
procedural safeguards such as
prompt determination of requests for
licenses and judicial review
Vagueness – a law is unconstitutionally
vague if a reasonable person cannot tell
what speech is prohibited and what is
permitted
Overbreadth – a law is unconstitutionally
overbroad if it regulates substantially more
speech that the constitution allows to be
regulated
Fighting word laws are unconstitutionally
vague and overbroad (words directed at
another trying to get a violent response)
The government can regulate conduct that
communicates if it has an important interest
unrelated to suppression of the message and
if the impact on communication is no
greater than necessary to achieve to the
government’s purpose (example – killing of
bar examiner)
1.
2.
3.
4.
Examples of symbolic speech
Anonymous speech
Unprotected/Less speech
Incitement test
Obscenity Test
flag burning = protected
draft card burning = not protected
nude dancing = not protected
burning cross or painting a swastika
= protected
5. penalty enhancements =
constitutional
6. contribution limits = constitutional
7. expenditure limits = unconstitutional
PROTECTED by the constitution
1. incitement of illegal activity
2. obscenity and sexually-oriented
speech
3. commercial speech
4. defamation
5. privacy
1. Substantial likelihood of imminent
illegality
2. Directing at causing illegality
1. The material must appeal to the
prurient interest
2. The material must be patently
offensive under the law prohibiting
obscenity
3. Taken as a whole, the material must
lack serious redeeming artistic,
literary, political or scientific value



Obscenity application – what can
government do to fight against it?



Commercial speech
1. False and deceptive ads are not
protected by the First Amendment
2. True commercial speech that
inherently risks deception can be
prohibited
3. Other commercial speech can be
regulated if intermediate scrutiny is
met
4. It is unclear whether government
regulation of commercial speech
must use the least restrictive
alternative

Inherently dangerous commercial speech
that can be regulated
The government may use zoning
ordinances to regulate the location of
adult bookstores and movie theatres
Child pornography may be
completely banned, even if not
obscene
The government may not punish
private possession of obscene, but
the government may punish private
possession of child pornography
The government may seize the assets
of businesses convicted of violating
obscenity laws
Profane and indecent speech is
generally protected by the First
Amendment
Exceptions: Over the broadcast
media (TV and radio not cable)
because it is uniquely intrusive into
the home and in schools


The government may prevent may
professionals from advertising or
practicing under a trade name
The government may prohibit
attorney in person solicitation of
clients for profit
The government may not prohibit
CPA in person solicitation of clients
Defamation – plaintiff public official or
running for office
Defamation – public figure
Defamation – private figure and public
concern matter
Defamation – private figure and private
concern matter
Privacy speech
Public forums
How can government regulate public
forums?
Have to prove falsity of the statement and
actual malice to recover damages
Actual malice – speaker knew statement was
false or acted with reckless disregard for the
truth
Those who thrust themselves in the
limelight; access to the media; must prove
falsity and actual malice
Plaintiff has to prove falsity of the statement
and negligence to get compensatory
damages; BUT to get presumed or punitive
damages – have to show actual malice
Can recover presumed or punitive damages
without proof of actual malice (don’t know
standard of liability or who has burden of
proof)
 The government may not create
liability for the truthful reporting of
information that was lawfully
obtained from the government
 The government may limit its
dissemination of information to
protect privacy
Places where government must make
available for speech
Classics – parks and sidewalks
1. Regulations must be subject matter
and viewpoint neutral
2. Regulations must be a time, place, or
manner regulation that serves an
important government purpose and
leaves open adequate alternative
places for communication
3. Government regulation of public
forums need not use the least
restrictive alternative
4. City officials cannot have discretion
to set permit fees for public
determination
Limited/designated public forums
Non public forums
Examples of non-public forums
Government could close to speech but
chooses to voluntarily open the forum to the
speech SO if government has opened it the
government has to follow the rules of public
forum
Government properties the government can
and does close to speech; regulation must be
reasonable and viewpoint/content neutral
 Military bases
 Areas outside prisons and jails
 Advertising space on city buses
 Sidewalks on post office property
 Airports
 Candidate debates on sponsored by
government owned media outlets


Freedom of association – types of
unconstitutional laws

Laws that prohibit or punish group
membership must meet strict
scrutiny.
Laws that require disclosure of
group membership, where such
disclosure would chill association
must meet strict scrutiny
Laws that prohibit a group from
discriminating are constitutional
unless they interfere with intimate
association or expressive activity
To punish membership in a group it must be
proven that the person:
To punish membership in a group
government MUST prove
1. Actively affiliated with the group
2. Knowing of its illegal activities and
3. With the specific intent of furthering
those illegal activities
Free exercise clause application
Establishment Clause Test
Establishment clause application
1. The government may not punish
religious beliefs
2. The free exercise clause cannot be
used to challenge a law of general
applicability unless the law is
motivated by a desire to interfere
with religion
3. The government may not deny
benefits to individuals to those who
quit their jobs for religious reasons
1. There must be a secular purpose
2. The effect must be neither to
advance nor inhibit religion
3. There must not be excessive
entanglement with religion
1. The government cannot discriminate
against religious speech or among
religions unless strict scrutiny is met
2. Government sponsored religious
activity in public schools is
unconstitutional. But religious
student and community groups must
have the same access to school
facilities as non-religious groups
3. The government may give assistance
to parochial schools, so long as it is
not actually used for religious
instruction