Constitutional Law

MS Con Law

Terms in this set (...)

Federal Judicial Power - Cases & Controversies
There must be a real, live controversy between the parties.
Federal Judicial Power - Cases & Controversies Elements
A case or controversy will exist if:

(1) there is an actual dispute between parties

(2) having adverse legal interests.

Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests.
Federal Judicial Power - Cases & Controversies - Declaratory Judgment
A suit seeking a declaratory judgment can meet the case or controversy requirement.
Federal Judicial Power - Cases & Controversies - Class Actions
A class action suit in which the named representative's claim is moot can still be a case or controversy if some class members' claims are viable.

While federal courts generally will not hear a case if it is moot, if class members' claims are still viable, the suit will not be considered moot even though the claim of the class representative is.
Justiciability Requirements
(1) Standing
(2) Ripeness
(3) Mootness
(4) No Political Questions
Whether P is a proper party to bring the matter to court:

(1) Injury in fact
(2) Causation & Redress-ability
(3) No third party standing
(4) No generalized grievances
Standing - Injury in Fact
P must allege and prove that he or she has been injured or will be imminently injured.

No ideological objections. Abstract or hypothetical injury is not enough.
Standing - Injury in Fact Examples
(1) Plaintiffs only may assert injuries that they personally have suffered

(2) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm
Standing - Causation
P must allege and prove that the D caused the injury
Standing - Redress-ability
A favorable court decision can remedy the harm

If a federal court ruling would have no effect then it is merely an advisory opinion
Standing - No Third Party Standing
In general, a P cannot bring a claim on someone else's behalf.
Standing - Third Party Exceptions
Third party standing allowed if:

(1) Close relationship (doctor/patient; NOT non-custodial parent).

(2) Injured party is unlikely to assert their own rights (e.g. jury discrimination)

(3) Organization
Standing - Organizations
An organization may sue for its members if:

(1) individual members would have standing

(2) the interests are germane to the organization's purpose

(3) neither the claim nor relief requires the participation of individual members.
Standing - No Generalized Grievances
P must not be suing solely as a citizen or tax payer
Standing - Generalized Grievances Exceptions
(1) Taxpayers have standing to challenge the government expenditures pursuant to federal statutes as violating the Establishment Clause.

(2) Citizen has standing to allege federal action that violates the 10th Amendment by interfering with the powers reserved to the states so long as there is injury in fact and redressability.
Standing Examples
(1) A court is likely to find standing in a suit by a business owner against the federal government, claiming that the government's failure to conform to a statute has reduced the profitability of his business.

(2) A plaintiff who has been injured by the government's failure to conform its conduct to the requirements of a specific federal statute has the required stake in the outcome necessary to find standing.

(3) A citizen's interest in seeing that the government acts constitutionally is too remote an interest on which to base standing.
Standing - Federal Agency
A suit alleging that P was harmed by the agency's failure to act pursuant to the statute creating the agency and seeking to force compliance is justifiable and will not be dismissed for lack of standing.

A P can have standing to require government actors to conform to a federal statute if the plaintiff's injury is within the "zone of interest" meant to be protected by the statute. Because P's harm stems from the agency's failure to act, P appears to meet the zone of interest requirement.
Standing - Organization
An organization has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate the following three facts:

(i) An injury in fact to the members of the organization that would give individual members a right to sue on their own behalf;

(ii) The injury to the members must be related to the organization's purpose; and

(iii) Neither the nature of the claim nor the relief requested requires the participation of the individual members in the lawsuit.

A suit alleging that agency action harms members of plaintiff's organization, member participation in the suit is not needed, and the agency action interferes with the goals of the organization is justiciable.

An organization may challenge a government action on behalf of its members even if the members are unable to participate in the lawsuit.
Standing - Establishment Clause Exception for Taxpayer Standing
While generally, there is no federal "taxpayer standing" because a federal taxpayer's interest is too remote, the Supreme Court has carved out an exception for cases where the claim is that a congressional spending measure violates the Establishment Clause.
Standing - Assignee's Claim Against the Federal Government
A court is likely to find standing in a suit by an assignee of a claim against the federal government for which sovereign immunity has been waived, claiming as the only injury a share of any recovery.

Assignees of claims have a sufficient stake in the outcome of the claim.
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.


(1) the level of hardship that will be suffered without pre-enforcement review

(2) the fitness of the issues in the record for judicial review (i.e. is there something to be gained by waiting for an actual prosecution)

(Exam Tip: If the question includes a request for declaratory judgment, analyze ripeness)
P must present a LIVE CONTROVERSY

If events after the filing of a lawsuit end P's injury, the case must be dismissed as moot.

However, a non-frivolous money damages claim will keep the case alive
Mootness - Exceptions
(1) The alleged action is capable of repeated harm but escapes judicial review because of its inherently limited time duration (e.g. abortion)

(2) Voluntary Cessation - If the defendant voluntarily halts the offending conduct but is free to resume it at any time, the case will not be dismissed as moot (i.e. voluntarily giving up a discriminatory hiring practice).

(3) Class action suits (If the named P's claim becomes moot, the case continues so long as one member still has an ongoing injury.)
Political Question Doctrine
The political question doctrine refers to constitutional violations that the federal courts will not adjudicate.

Cases that are dismissed as non-justiciable political questions:

(1) Guarantee each state a republican form of government (guarantee clause)

(2) President's foreign policy

(3) Impeachment and removal process

(4) Partisan gerrymandering
Political Question Examples
A political question is an issue committed to another branch of the federal government, and a federal court will not review such an issue. Political questions also include issues inherently incapable of resolution and enforcement by the judicial process.


(1) A question of whether presidential papers are necessary to the continuation of a criminal proceeding is justiciable and not a political question.

(2) A question regarding the conduct of foreign relations is a political question, and the Supreme Court will not decide it. This question is committed by the Constitution to another branch of the government.

(3) A question as to the procedures used by the Senate to try impeachments is political, and the Supreme Court will not decide it. This question is committed by the Constitution to the Senate.

(4) A question as to whether a candidate for Congress meets the age and residency requirements for office is a political question, and the Supreme Court will not address it. This question is committed by the Constitution to the respective houses of Congress.
Abstention & Doctrine of Strict Necessity
Abstention is the concept that a federal court will not review a claim because it is based on an unsettled question of state law, involves a pending state criminal proceeding, or involves a pending state civil or administrative proceeding that concerns an important state interest.

Under the doctrine of strict necessity, the federal courts will allow the state to decide the issue first, possibly avoiding the need for litigation in the federal court. Abstention does not involve an issue committed to another branch of the federal government.
Supreme Court Review - Writ of Certiorari (Permissive)
Granted if 4+ justices vote to hear the case (virtually all cases):

(1) All cases from State court

(2) All cases from U.S. Court of Appeals
Supreme Court Review - Original & Exclusive Jurisdiction (Mandatory)
(1) Appeal exist for decisions by three-judge federal district court panels

(2) The Supreme Court has original and exclusive jurisdiction for suits between state governments.
Supreme Court Review - Final Judgment Rule
Generally, the Supreme Court may hear cases only after there has been a final judgment:

(1) of the highest state court,

(2) of a United States Court of Appeals, or

(3) of a three-judge federal district court.
Independent & Adequate State Grounds
For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision. (e.g. A judgment that is partially based on a violation of a state Equal Protection Clause.)

If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court's reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.

If the state grounds are fully dispositive of the case and do not depend on federal case law interpretation, federal review would be pointless because regardless of how any federal issue is resolved, the state law grounds would support the state judgment.

But if the state grounds are not adequate to support the judgment or are not independent of federal law, the federal courts will hear the case.

If the state court decision turns on federal grounds and is from the highest court in the state, the Supreme Court can review the state court decision.
Federal Courts - Sovereign Immunity
Federal courts (and state courts) may not hear suits against state governments.

11th Amendment prohibits federal courts from hearing cases against

(1) State governments

(2) Federal agencies
Federal Courts - Sovereign Immunity - State v. State Government Suits
The Eleventh Amendment does not bar actions by one state government another state government.
Federal Courts - Sovereign Immunity Exceptions
States may be sued under the following circumstances:

(1) Express consent/waiver of immunity is permitted

(2) Section 5, 14th Amend. Congress cannot authorize suits against states under other constitutional provisions.

(3) Feds v. State - The federal government may sue state governments.

(4) Bankruptcy proceedings
Federal Courts - State Officers
Suits against State Officers are allowed if they're being:

(1) sued for injunctive relief

(2) sued for money damages to be paid out of their own pockets

(3) sued if it is the state treasury that will be paying retroactive damages
Federal Courts - Abstention
Federal courts may not enjoin pending state court proceedings.
The Federal Legislative Power - Congress' Authority to Act
(1) There must be express or implied Congressional power

(2) The necessary and proper clause (implied power)

(3) The tax / spending power, and

(4) The commerce power
The Federal Legislative Power - The Necessary and Proper Clause
Congress can adopt all laws that are NECESSARY and PROPER to exercise its express or implied authority.
The Federal Legislative Power - Express Powers
Congress has the express power to:

(1) Tax and spend for the general welfare
(2) Regulate interstate commerce
The Federal Legislative Power - Express Powers - Tax & Spending Power - President Has No Power to Decline to Spend Funds
The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress's reason for making the appropriation.

The President has no "legislative" power in internal affairs, and has a duty under Article II to "see that the laws are faithfully executed." In contrast, Congress clearly has the power to spend to "provide for the common defense and general welfare."

Hence, the Supreme Court has ruled that there is no constitutional basis for the President to "impound" (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated.
The Federal Legislative Power - Police Power
Congress has no general police power, EXCEPT:

1. M - Military
2. I - Indian reservations
3. L - Lands and territories (federal)
4. D - District of Columbia
The Federal Legislative Power - Commerce Clause
Congress can regulate commerce with:

(1) Foreign nations
(2) Indian tribes
(3) Among the several states
The Federal Legislative Power - The Commerce Power - Interstate Commerce
Congress may regulate the:

(1) Channels (highways, waterways, & internet)

(2) Instrumentalities, persons, & things

(3) Activities that have a SUBSTANTIAL IMPACT on interstate commerce (e.g. farmers growing wheat for personal use IS interstate commerce but violence against women is NOT.)
The Federal Legislative Power - The Commerce Power - Interstate Commerce - Substantial Impact on Interstate Commerce
As part of its power to regulate interstate commerce, Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce.
The Federal Legislative Power - The Commerce Power - Interstate Commerce - Non-economic Activity
In the area of non-economic activity, having a substantial effect on interstate commerce cannot be based on cumulative impact (i.e. violence against women).
The Federal Legislative Power - The Commerce Power - Interstate Commerce - Inactivity
Five justices have said that Congress cannot regulate inactivity.
The Federal Legislative Power - 10th Amendment
The 10th Amendment limits Congressional powers, stating that all powers not granted to the United States, nor prohibited to the states, are RESERVED to the states or the people.
The Federal Legislative Power - 10th Amendment -
State Legislatures
Congress CANNOT compel state regulatory or legislative action, BUT it can INDUCE state action by placing express conditions on federal grants, so long as the conditions relate to the purpose of the spending program and are not unduly coercive.

No federal commandeering of state and local governments.
The Federal Legislative Power - 10th Amendment - Harmful Commercial Behavior
Congress may prohibit harmful commercial activity by state governments.

(e.g. State selling personal information from DMV case)
The Federal Legislative Power - 14th Amendment, Section 5 Power
Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws mus be "proportionate" and "congruent" to remedying constitutional violations.

(e.g. Boerne v. Flores case about congress' law to expand protection for religious exercise)
The Federal Legislative Power - Delegation of Powers
(1) No limit on Congress' ability to delegate legislative power (always a wrong answer).

(2) Legislative and line-item vetoes are unconstitutional. For Congress to act, there always must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.

(3) Congress may NOT delegate executive power to itself or other officers.
The Federal Executive Power
Executive powers include:

(1) Foreign Policy
(2) Domestic Affairs
The Federal Executive Power - Foreign Policy
(1) Treaties
(2) Executive Agreements
(3) Use of American troops in foreign countries
Executive Power - Treaties
Negotiated by the President and are effective once ratified by the Senate.

The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount.

Even as to foreign relations that require congressional consent, the President's powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over declarations to cancel treaties.
Executive Power - Treaties & Conflict of Laws.
(1) State laws that conflict with treaties are INVALID.

(2) If a treaty conflicts with a federal statute, the one adopted last in time controls

(3) If a treaty conflicts with the U.S. Constitution., that treaty is invalid.
Executive Power - Executive Agreements
An agreement between the United States and a foreign country that:

(1) is effective when signed by the President and the head of the foreign nation;

(2) can be used for any purpose, and

(3) prevail of conflicting STATE laws but never over conflicting FEDERAL laws or CONST.
Executive Power - Treaties & Executive Agreements
Limits on the recognition power
It is unconstitutional for Congress by statute to designate the capitol of a foreign country.
Executive Power - War Powers
The President has broad powers as Commander-in-Chief to use American troops in foreign countries for any reason.
Executive Power - Domestic Affairs
(1) Appointment & Removal
(2) Impeachment and removal
(3) Presidential Immunity
(4) Executive Privilege
(5) Pardons
Executive Power - Domestic Affairs - Appointment of Officers
(1) Appointment Power: The President appoints ambassadors, federal judges, and cabinet officers and the Senate must confirm them.

(2) Congress may vest the appointment of INFERIOR officers in the President, heads of departments, or lower federal courts.

(3) Congress may not give itself or its officers the appointment power

(4) The President may not make recess appointments during intrasession recesses that are less than 10 days.
Executive Power - The Removal Power
Unless removal is limited by statute, the President may fire any executive branch office.
The Removal Power - Congressional Limit
For Congress to limit removal, it must be an office where:

(1) independence from the President is desired (e.g. special prosecutor); and

(2) it can limit removal to where there is good cause shown.
Executive Power - Impeachment and Removal
The President, Vice President, Federal Judges and all officers of the U.S. can be impeached and removed from the office for treason, bribery, high crimes, & misdemeanors.

(1) Impeachment does not remove a person from office

(2) Impeachment requires majority of the house

(3) Removal requires 2/3 of the Senate
Executive Power - Immunity
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.
Executive Power - Privilege
The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests.
Executive Power - Pardons
President can pardon anyone accused or convicted of a FEDERAL CRIME, except someone impeached by the House of Representatives.

Doesn't apply to impeachment. This power only applies to federal law crimes; only for criminal liability - not for civil including civil contempt.
Federalism - Preemption
Supremacy Clause says that the Constitution and the laws and treaties made pursuant to it are the SUPREME LAW OF THE LAND.

(1) Express preemption

(2) Implied preemption

(3) Intergovernmental tax immunity
Federalism - Express Preemption
If a federal statute states that federal law is exclusive in a field, then state and local laws are preempted.
Federalism - Implied Preemption
Implied federal preemption exists:

(1) If federal and state laws are mutually exclusive; (but states can set stricter (i.e. environmental) laws than the federal government unless Congress prohibits it)

(2) If state law impedes the achievement of a federal objective; or

(3) If Congress evidences a CLEAR INTENT to preempt state law (e.g. immigration)
Federalism - Preemption - Entire Area of Regulation
The states may regulate local aspects of interstate commerce as long as Congress has not adopted regulations concerning the subject matter or preempting the entire area of regulation.
Federalism - Preemption - Negative Implications of the Commerce Clause
Even absent federal legislation, under the negative implications of the Commerce Clause state regulation must not discriminate against interstate commerce or unduly burden it.
Federalism - Preemption - Field Preemption
Field preemption occurs when Congress shows an intent to occupy an entire field, thus precluding any state regulation.

If the law does not state whether state law is to be preempted, the Court will look to the comprehensiveness of the scheme and whether Congress has created an agency to administer over the area.
Federalism - Intergovernmental Immunity
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 that interfere with their federal functions.
Federalism - Intergovernmental Tax Immunity
States may not charge state tax to be paid out of federal treasury for federal government activity

(i.e.Mom and Pop store on federal land - can be tax; no significant burden from states on federal government)
Federalism - Dormant Commerce Clause
State or local laws are invalid if they place an UNDUE BURDEN on interstate commerce. Must conduct a balancing.

(e.g. Ban on out-of-state baitfish is permissible.)
Federalism - Privileges & Immunities
Two Sources:

(1) Privileges and immunities under Art. IV
(2) Privileges or immunities under the 14th Amend.
Federalism - Art. IV Privileges & Immunities
No state or municipality may deny citizens of other states the privileges and immunities it AFFORDS ITS OWN CITIZENS without SUBSTANTIAL JUSTIFICATION.

(e.g. can't require residency to sit for the bar)
Federalism - 14th Amend. Privileges or Immunities
Guarantees a PERSON'S (not citizens) right to travel from one state to another.

The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel.

The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

(Exam Tip: Always a wrong answer unless the question involves the right to travel)
Federalism - Discrimination Against Out-of-Staters & Burdens Interstate Commerce
Unconstitutional UNLESS it is:

(1) necessary to achieve an important government purpose; and

(2) government must show that no less discriminatory method can achieve its goal

(e.g. In-state college tuition)
Federalism - Discrimination Against Out-of-Staters & Burdens Interstate Commerce - Analysis where the law does not discriminate
Analysis if the law does not discriminate

(1) The privileges and immunities clause of Article IV does not apply

(2) If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits (even if the law is non-discriminatory)
Federalism - Discrimination Against Out-of-Staters & Burdens Interstate Commerce - Analysis where the law does discriminate
If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose (protectionist policies are insufficient justification)


(1) Congressional approval

(2) The market participation exception: A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.
Federalism - Discrimination Against Out-of-Staters & Burdens Interstate Commerce - Market Participant Exception
A state may prefer its own citizens when acting as a market participant (e.g., when buying or selling, hiring labor, or giving subsidies).
Federalism - Out of State Discrimination & Earning a Living
If the law discriminates against out-of-staters with regard to their ability to earn a living, it violates the privileges and immunities clause of Art. IV unless it is necessary to achieve an important gov't purpose.

(1) The law must discriminate against out-of-staters.

(2) The discrimination must be with regard to fundamental rights or important economic activities

(3) Corporations & aliens cannot use or invoke privileges and immunities (only DCC)

(4) The discrimination must be necessary to achieve an important gov't purpose

(e.g. commercial fishing is earning a living but elk hunting is a hobby.)
Dormant Commerce Clause/Privileges and Immunities Clause of Article IV
Comparison of the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV
Federalism - State Taxation of Interstate Commerce
(1) States may not use their tax systems to help in-state businesses preferentially.

(2) A state may only tax activities if there is a substantial nexus between the product or activity to the taxes and the state.

(3_ State taxation of interstate business or companies must be fairly apportioned.
Federalism - Full Faith & Credit
Courts in one state must enforce all judgment of courts in another state if:

(1) there was personal & subject matter jurisdiction

(2) the judgment was on the merits

(3) the judgment was final.
Individual Liberties - Is there Government Action?
(1) The Constitution applies only to government action, not private conduct.

(2) Congress can enact statutes to regulate private conduct.

(3) Exceptions: Situations where private conduct must comply with the Constitution
Individual Liberties - Statutes Regulating Private Conduct
(1) The 13th Amend. prohibits slavery (irrespective of gov't/private action) & pursuant statutes prohibit private race discrimination.

(2) Under the Commerce Clause, Congress can regulate private conduct (e.g. Civil Rights Act of 1964).

(3) Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior
Individual Liberties - Exceptions
Situations where private conduct must comply with the Constitution:

(1) The public functions exception: The Consititution applies if a private entity performs a function usually done by the government

(2) The entanglement exception: The Consititution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
Individual Liberties - Exceptions - Public Function - Education
Education has never been considered to be an exclusively public function.
Individual Liberties - Government Employee - State Action - Funding
Licensing by the state and receipt of state funds do not constitute significant state involvement with regard to its personnel matters.
Individual Liberties - Government Employee - Speech - Public School
Even a public school probably could fire a teacher for his speech (if its termination procedures were otherwise proper).

Because public schools generally are not public forums, reasonable restrictions based on legitimate pedagogical concerns rather than the content of the speech are permissible.

(For example, a school reasonably could argue that urging the students to organize a protest against a school policy would disrupt discipline and interfere with its educational process. If a teacher is fired by a public school, he would be able to claim a property right in his employment for the balance of his contract. The school probably would have had to provide him with a pretermination opportunity to respond to the charges against him. If a teacher instead been an employee-at-will, without a contract, he would have had no property interest in continued employment even if his employer had been a public school.)
Individual Liberties - The Entanglement Exception Examples
(1) Courts cannot enforce racially restrictive covenants.

(2) There is state action when the government leases premises to a restaurant that racially discriminates.

(3) There is state action when a state provides books to schools that racially discriminate.

(4) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech.

(5) There is no state action when the NCAA orders the suspension of a basketball coach at a state university.

(6) There is state action when a private entity regulates interscholastic sports within a state.

(7) There is not state action when a private club with a liquor license from the state racially discriminates.
Individual Liberties - State Action - 14th Amendment Due Process Clause
The Fourteenth Amendment Due Process Clause, which makes many of the provisions of the Bill of Rights applicable to the states, does not apply to purely private conduct that interferes with these rights.

Thus, unless the private individual

(i) was performing exclusively public functions, or

(ii) took actions with significant state involvement,

the individual's action is not unconstitutional.
Individual Liberties - Application of Bill of Rights
(1) Applies directly only to the Federal Gov't

(2) Applies to state and local governments through its incorporation into the due process clause of the 14th Amend.
Individual Liberties - Bill of Rights Exceptions
Amendments NOT enforceable against state and local gov'ts:

- 3rd Amend. right to not have to quarter soldiers in your own home

- 5th Amend. right to grand jury indictment in ALL criminal cases

- 7th Amend. right to a jury trial in civil cases

- 8th Amend. right against excessive fines.
Individual Liberties - Levels of Scrutiny
1. Rational Basis
2. Intermediate Scrutiny
3. Strict Scrutiny
Individual Liberties - Rational Basis

Challenger has the burden of proof
Individual Liberties - Intermediate Scrutiny

Government has the burden of proof.
Individual Liberties - Strict Scrutiny

The government has the burden of proof.
Individual Rights
(1) Procedural Due Process (notice, hearing, etc.)

(2) Substantive Due Process (adequate justification for the government to take away life, liberty, or property?)

(3) Equal Protection (Difference in treatment of people adequately justified?)
Procedural Due Process - Has there been a deprivation of life, liberty, or property?
(1) A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.

(2) A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled
Procedural Due Process - Has there been a deprivation of life, liberty, or property? Examples
• Except in an emergency, for an adult to be institutionalized there must be notice and hearing

• When a parent institutionalizes child, just a screening by neutral fact-finder

• Harm to reputation not enough for deprivation of liberty claim

• Prisoner rarely have liberty interests - usually lose
Procedural Due Process - Has there been a deprivation of life, liberty, or property? - Government Negligence
Government negligence is not sufficient for a deprivation of due process.

Generally, there must be intentional government action or at least reckless action for liability to exist.

However, in emergency situations, the government is liable under due process only if its conduct "shocks the conscience."
Procedural Due Process - Has there been a deprivation of life, liberty, or property? - Government's Failure to Protect People from Privately Inflicted Harms
Generally, the government's failure to protet people from privately inflicted harms does not deny due process.

Except where the person is in the government's custody or where the government literally creates the danger.
Due Process - Government Employee Speech - Public Issues
Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech.

A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer's policies or undermines the employer's authority.

Under the Court's expansive interpretation of what a public issue is in this context, the accountant's statement would probably qualify. At the very least, he can make enough of a showing that his termination violates his free speech rights to be entitled to a hearing on the issue under procedural due process principles.
Procedural Due Process - Takings
1. Life (self explanatory)
2. Liberty - significant Const. freedom
3. Property
Procedural Due Process - Harm to Reputation
Not a loss of liberty, therefore not a taking.
Procedural Due Process - Prisoners
Prisoners have very few liberties, therefore there is rarely a taking.
Procedural Due Process - Takings Intent
For a taking to be unconstitutional, Government must act INTENTIONALLY or RECKLESSLY - negligence is insufficient.

EXCEPTION: In an emergency situation the gov't is liable ONLY IF its conduct SHOCKS THE CONSCIENCE.
Procedural Due Process - Procedure Balancing Test
(1) The importance of the interest to the individual

(2). The ability of additional procedures to increase the accuracy of the FACT-FINDING

(3) The government's interest in efficiency and saving money.
Procedural Due Process - Welfare Benefits
Notice & Hearing
Procedural Due Process - Parental Custody Termination
Notice & Hearing
Procedural Due Process - Adult Institutionalizing
Notice & Hearing
Procedural Due Process - Terminating Social Security Benefits
Post-termination Hearing
Procedural Due Process - Punitive Damage Awards
Jury instructions to guide discretion & judicial review to ensure reasonableness. Grossly excessive damages violate due process
Procedural Due Process - Non-citizen held as an enemy combatant
The ability to challenge continued detention.
Procedural Due Process - U.S. citizen held by American military abroad
Habeas corpus petition in federal court.
Procedural Due Process Chart
Substantive Due Process
(1) Economic rights - rational basis

(2) Property rights - 5th Amendment takings clause - just compensation

(3) Contract rights

(4) Privacy
Substantive Due Process - 5th Amendment - Takings Clause
The gov't may take private property for PUBLIC USE only if it provides JUST COMPENSATION.
Substantive Due Process - 5th Amendment - Property Takings
(1) Possessory taking: Government confiscation or physical occupation of property is a taking.

(2) Regulatory taking: Government regulation is a taking if it leaves no reasonable economically viable use of the property.
Property Takings - Analysis
(1) Is there a taking?

(2) Is it for public use?

(3) Is just compensation paid? (measured in terms of loss to the owner)
Property Takings - 5th Amendment - Decrease in Value of Property Due to Government Regulation
If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a "taking" requiring the payment of "just compensation" under the Fifth Amendment.

However, regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property.
Property Takings - 5th Amendment - Decrease in Value of Property Due to Government Regulation - Analysis
The court will consider

(i) the social goals sought to be promoted,

(ii) the diminution in value to the owner, and

(iii) whether the regulation substantially interferes with distinct, investment-backed objectives.
Substantive Due Process - Property Takings - Rules
(1) Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise, it is a taking

(2) A property owner may bring a takings challenge to regulations that existed at the time the property was acquired

(3) Temporarily denying an owner use of property is not a taking so long as the government's action is reasonable.
Substantive Due Process - Public Use
It is public so long as the gov't acts out of reasonable belief taking will benefit public (including private development)
Substantive Due Process - Just Compensation
Fair market value only.
Substantive Due Process - Contract Rights
No state or local gov't shall impair the obligations of contracts.

(1) Applies only to state or local interference with existing contracts.

(2) State or local interference with private contracts must meet intermediate scrutiny

(a) Does the legislation substantially impair a party's rights under an existing contract?

(b) If so, is the law a reasonable and narrowly tailored means of promoting an 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. (An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed). Retroactive civil liability only need meet a rational basis test.

(A bill of attainder is a law that directs the punishment of a specific person or persons without a trial.)
Substantive Due Process - Privacy Rights
Strict scrutiny:

1. Marry
2. Procreate
3. Have custody of own child
4. Maintain extended family
5. Control upbringing of children
6. Purchase and use contraceptives
7. Vote
8. Right to travel

Undue Burden Test:

9. Abortion

Level of scrutiny unknown:

10. Private consensual same-sex activity
11. Refuse medical treatment
12. Bear arms
Substantive Due Process - Abortion
Prior to viability, 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.


(1) a requirement for a 24 hour waiting period for abortions is not an undue burden.

(2) a requirement that abortions be performed by licensed physicians is not an undue burden

(3) the prohibition of "partial birth abortions " is not an undue burden.

(4) a requirement that physicians have admitting privileges at a hospital within 30 miles and that a facility have "ambulatory surgical facilities" is an unconstitutional undue burden

After viability, states may prohibit abortions unless necessary to protect the woman's life or health.
Substantive Due Process - Abortion Cont
(1) The government has no duty subsidize abortions or provide abortions in public hospitals.

(2) Spousal consent and notification laws are unconstitutional.

(3) 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 interests or that she is mature enough to decide for herself
Right to Privacy - Gay Sex
The right to privacy protects a right to engage in private consensual homosexual activity.
Right to Privacy - The right to refuse medical treatment
The right to refuse medical treatment:

(1) Competent adults have the right to refuse medical treatment, even life-saving medical treatment.

(2) A state may require 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.
Right to Privacy - Assisted Suicide
There is not a constitutional right to physician-assisted death.
The second amendment right to bear arms
"A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

(Not absolute right. The government may regulate who, how, when, where, type of guns. Can have guns at least in their homes for safety)
The right to travel
(1) Laws that prevent people from moving into a state must meet strict scrutiny

(2) Durational residency requirements must meet strict scrutiny

(3) Restrictions on foreign travel need meet only the rational basis test
The right to vote
(1) Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desirable

(2) One-person-One-vote must be met for all state and local elections. It is constitutionally permissible for districting to be based on total population; it does not need to be based on eligible voters

(3) At-large elections are constitutional unless there is proof of a discriminatory purpose

(4) The use of race in drawing election district lines must meet strict scrutiny

(5) Counting uncounted votes without standards in a presidential election violates equal protection
Right to Education
There is no fundamental right to education
Equal Protection
Whenever the Gov't draws a distinction among people
Equal Protection - Analysis
1. What is the classification?
2. What level of scrutiny should be applied?
3. Does the law meet the level of scrutiny?
Equal Protection - Constitutional Provisions
1. 14th Amend. applies only to state and local governments.

2. Federal government liable under the due process clause of the 5th Amend.
Equal Protection - Race
Classifications based on race, alienage, and national origin get STRICT SCRUTINY.
Equal Protection - Existence of Racial Classification
1. Classification exists on the FACE OF THE LAW.

2. If the law is race-neutral then P must demonstrate discriminatory impact AND intent

(Example: discriminatory use of peremptory challenges based on race denies equal protection)
Equal Protection - Racial Benefits
1. Strict Scrutiny is applied

2. Numerical set-asides require CLEAR PROOF OF PAST DISCRIMINATION

3. Public education may use race as ONE FACTOR in admissions decisions. They must show, however, that there is no race-neutral alternative which could achieve diversity. Additionally, educational institutions may not add points to applicants' admissions scores based on race.

4. Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.
Equal Protection - Gender
Equal Protection - Gender Classifications
1. Face of the law

2. If the law is neutral on its face, then P must prove Discriminatory impact AND discriminatory intent.
Equal Protection - Benefiting Women
1. Gender classifications benefiting women based on STEREOTYPES will not be allowed (strict scrutiny).

2. Classifications that are designed to remedy past discrimination will be allowed.
Equal Protection - Alienage
Generally, laws that discriminate against non-citizens must meet STRICT SCRUTINY.

(e.g. denying welfare unconstitutional)
Equal Protection - Alienage RBT Exceptions
These privileges may be reserved just for citizens:

1. Voting
2. Jury duty
3. Police officer
4. Probation officer
5. Teacher
Equal Protection - Alienage & Congress
When Congress discriminates against aliens, only RATIONAL BASIS applies.
Equal Protection - Alien Children
Intermediate scrutiny.
Equal Protection - Non-marital children
Intermediate scrutiny

Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional
Rational basis review
1. Age discrimination
2. Disability discrimination
3. Wealth discrimination
4. Economic regulations
5. Sexual orientation discrimination
Equal Protection - Age Discrimination
Rational basis
Equal Protection - Disability
Rational basis

e.g. Zoning to prevent home for mentally disabled still unconstitutional under rational basis (Texas)
Equal Protection - Wealth Discrimination
Rational basis - poverty not a suspect class
Equal Protection - Sexual Orientation
Rational basis (though this may be changing)
1st Amend.
1. Speech
2. Association
3. Religion
1st Amend. - Speech: Conduct vs. Content
A regulation that controls the CONTENT of speech is less likely to be upheld than a regulation of CONDUCT incidental to speech.
To pass constitutional muster under the First Amendment, a statute or ordinance that burdens speech based on its content generally must be:
1st Amend. - Speech: Content
Content-based restriction must meet STRICT SCRUTINY

(1) Subject matter restrictions (application of the law depends on the topic of the message i.e. violence)

(2) Viewpoint/ideology restrictions (application of the law depends on the ideology of the message)

Content-neutral regulations burdening speech need to meet intermediate scrutiny.
Prior Restraints - 1st Amendment - Speech: Court Orders
Court orders restricting speech must meet strict scrutiny

(1) A procedurally proper court order must be complied with until it is vacated or overturned. A person who violates gag order is barred from challenging it.

(2) Gag orders on the press to prevent prejudicial pretrial publicity are not allowed.
1st Amend. - Speech: Speech License
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
1st Amend. - Speech: Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
1st Amend. - Speech: Fighting Words
Words intended to provoke physical violence are NOT protected, but statutes attempting to punish fighting words are often found to be vague and overbroad.
1st Amend. - Speech: Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
If a regulation of speech is found to be overbroad, but judged in relation to its plainly legitimate sweep it does not prohibit a substantial amount of protected speech, may it be enforced?
1st Amend. - Speech: Symbolic Speech
The gov't may regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's goal
1st Amend. - Speech: Flag Burning
1st Amend. - Speech: Draft Card Burning
Not protected
* Gov't has a need to mobilize troops
1st Amend. - Speech: Nude Dancing
Not protected
1st Amend. - Speech: Cross Burning
Protected UNLESS there it threatens or intimidates others.
1st Amend. - Speech: Campaign Contributions
Limits on contributions to election campaigns are ALLOWED, BUT Expenditure limits on campaigns are NOT allowed.
1st Amend. - Speech: Anonymous Speech
Anonymous speech is protected

Exception: Ballot petitions
1st Amend. - Speech: Not Protected
1. Incitement of illegal activity. The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

2. Obscenity & Sexually Oriented speech (but not mere possession)

3. Zoning ordinances to regulate adult bookstores

4. Child porn (including possession)

5. Fighting words

6. Advertising for illegal activity

7. Deceptive advertising

8. Defamation
1st Amend. - Speech: Obscenity & Sexually Oriented speech Test
(1) The material must appeal to the prurient interest (local standard)

(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 (national standard)

(4) The government may seize the assets of businesses convicted of violating obscenity laws
1st Amend. - Speech: Profane and Indecent Speech
Profane and indecent speech is generally protected by the First Amendment


(1) over the broadcast media
(2) in schools
1st Amend. - Speech: Commercial speech
Advertising for illegal activity and false and deceptive ads are not protected by the First Amendment

True commercial speech that inherently risks deception can be prohibited

(1) The government may prevent professionals from advertising or practicing under a trade name

(2) The government may prohibit attorney, in-person solicitation of clients for profit

(3) The government may not prohibit accountants from in-person solicitation of clients for profit

Other commercial speech can be regulated if intermediate scrutiny is met

Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
1st Amend. - Speech: Defamation and IIED
Public Official, Candidate or public figure: Falsity & malice

Private Figure & Public Concern: Falsity & Negligence (However, the plaintiff may recover presumed or punitive damages only by showing actual malice)

Private Figure Only: Falsity only (the plaintiff can recover presumed or punitive damages without showing actual malice)

Liability for intentional infliction of emotional distress for defamatory speech must meet the defamation standards and cannot exist for speech otherwise protected by the first amendment
1st Amend. - Speech: Privacy
(a) The government may not create liability for the truthful reporting of information that was lawfully obtained from the government

(b) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance

(c) The government may limit its dissemination of information to protect privacy
1st Amend. - Speech: Government Employees
Speech by government employees on the job in the performance of their duties is not protected by the First Amendment.
1st Amend. - Speech: Content-Based Restrictions
Other government restrictions based on the content of speech must meet strict scrutiny.

Example: Restrictions on violent speech must meet strict scrutiny.
1st Amend. - Speech: Public Places
1. Public forums
2. Designated public forums
3. LImited Public Forums
4. Non-public forums
1st Amend. - Speech: Public Forums
Public forums-government properties that the government is constitutionally required to make available for speech.


(1) Must be subject matter and viewpoint neutral or if not, strict scrutiny must be met.

(2) Must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication.

(3) Need not be the least restrictive alternative, but must be narrowly tailored

(4) City officials cannot have discretion to set permit fees for public demonstrations
To be valid, a time, place, and manner regulation of a limited public forum must be:
1st Amend. - Speech: Designated Public Forums
Government properties that are chosen to be left open to speech (school facilities).

Same rules as public forums.
1st Amend. - Speech: Limited Public Forums
Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.

The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.
1st Amend. - Speech: Non-public Forums
Government properties that the government constitutionally can and does close to speech.

The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.

(Examples: Military bases; areas outside prisons and jails, sidewalks on post office property, airports)
1st Amend. - Speech: Private Property
There is no First Amendment right of access to private property for speech purposes
Places Available For Speech
1st Amend - Free Exercise Clause
Prohibits the govt from punishing someone on the basis of the person religious beliefs.
Freedom of association - Laws Prohibiting or Punishing Group Membership
Laws that prohibit or punish group membership must meet strict scrutiny, To punish membership in a group it must be proven that the person:

(a) actively affiliated with the group;

(b) knowing of its illegal activities; and

(c) with the specific intent of furthering those illegal activities.
Freedom of association - Laws Requiring Disclosure of Group Membership
Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny.
Freedom of association - Laws Prohibiting a Group from Discriminating
Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity.
states can regulate general conduct even if it interfers with the Free Exercise Clause unless its neccessary to promote a compelling interest
Freedom of Religion - The free exercise clause
(a) The free exercise clause cannot be used to challenge a neutral law of general applicability.

(b) The government may not deny benefits to individuals who quit their jobs for religious reasons.

(c) The government may not hold a religious institution liable for the choices it makes as to who will be its ministers.
Freedom of Religion - The Establishment Clause
The test:

(i) there must be a secular purpose for the law

(ii) the effect must be neither to advance nor inhibit religion

(ii) there must not be excessive entanglement with religion.
Freedom of Religion - The Establishment Clause - Discrimination Against Religious Speech
The government cannot discriminate against religious speech or among religions unless strict scrutiny is met.
Freedom of Religion - The Establishment Clause - Government Sponsored Religious Activity
Government-sponsored religious activity m public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups
Freedom of Religion - The Establishment Clause - Parochial Schools
The government may give assistance to parochial schools, so long as it is not used for religious instruction.

The government may provide parents vouchers which they use in parochial schools.
Freedom of Religion - Example - State Statute Prohibiting Ritual
A state adopted a statute making the ritual slaughter of chickens illegal. The legislative debates made clear that the purpose of the statute was to prevent unnecessary cruelty to animals. The religious leader of a church located within the state, whose core religious beliefs require ritual slaughter of chickens during worship services, brought suit to have the statute declared unconstitutional for violating her right to practice her religion.

How will the court likely rule?

Invalidate the statute because it targets only ritual slaughter.

(The First Amendment provides that the free exercise of religion shall not be abridged; however, the prohibition is far from absolute. The Supreme Court has stated that the amendment prohibits the government from outlawing religious beliefs and it has struck down a statute similar to the one here that outlaws conduct merely because it is religious (i.e., ritual slaughter of chickens is prohibited but not other instances of chicken slaughter), at least when the law is not necessary to achieve a compelling interest.)
Approach to Constitutional Law Question
Unemploymnet Compensation Cases - Some Exemptions Required
If a person resigns from a job or refuses to accept a job becasue it conflicts with her religious beliefs, the state must pay her unemployment compensation if she is otherwise entitled
Freedom of Religion - Generally no Exemptions Required
"I cant cant conform!!" Um dont think so,


- a prohibiton against the use of peyote

- denial of tax-exempt status to schools that discriminate on the basis of race

- requirement that employers comply with federal minimum wage laws

- requirement that employers pay Social Security taxes

- Sales and use taxes as applied to sales of goods and literature by religious groups
Need Not Belong to Formal Religious Organization
All that is required is the person sincerly hold religous beliefs that prevent him from working a certain day or on military products
Right of Amish Not to Educate Children
SCOTUS decided that Amish were productive and law abiding citizens and ruled they have a right to educate one's children. Free Exercise Clause outweighed state interest
Limitation - Criminal Prohibitions
Can't disregard criminal laws due to religious beliefs, so unemployment comp laws may disqualify someone for misconduct including violation of criminal law (using Peyote)
1ST Amend - Establishment Clause
Prohibits laws respecting the establishment of religion
Establishment Clause - No Sect Preference (Lemon Test)
Government action is valid if:

(i) has a secular purpose

(ii) has a primary effect that neither advances nor inhibits religion; and

(iii) does not produce excessive government entanglement with religion
Sect Preference
Compelling Interest Test applies: To be valid, the law or program must be narrowly tailored to promote a compelling interest.

Governmental action that does not contain a sect preference will pass muster under the Establishment Clause if:

(1) it has a secular purpose,

(2) its primary effect neither advances nor inhibits religion, and

(3) it does not require excessive government entanglement with religion.
Establishment Clause Cases Gropued into 3 Categories
(a) Cases Unconnected to Financial Aid or Education

(b) Cases Involving Financial Benefits to Church-Related Institutions

(c) Cases Concerning Religious Activites in Public Schools