Con-law Rosenberg f04 2

8/9/2019 Con-law Rosenberg f04 2

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Constitutional Law Outline

I. Federal ActionMust be a governmental action for the Constitution to apply

A. Does the federal court have the power to decide the case?1. Congressional limits on jurisdiction

a. The Court only has the power to decide cases

b. Types of SCTOUS !i. Original urisdiction

". "mbassadors

#. Other public Ministers and ConsulsC. State v. State controversies

ii. "ppellate urisdiction

". This is at the Court$s discretion#. May hear appeals from state supreme courts

C. Cases involving

1. "dmiralty%. &ederal 'uestions

(. State v. State

). *iversity

+. State v. foreign citi,en*. "ny case arising under the Constitution

1. udicial powers should arise under case arising under the

Constitution%. "ny case where someone asserts that there constitutional

rights have been violated-the Court has j!

(. f it is a conflict between statute and Constitution/ theCourt has the authority to declare the statute

unconstitutional

0. rit of Mandamus

1. This is an order compelling the government or one of itsagents to do something

c. Congress can limit the Court and federal j!/ and it may 2OT be e!panded

beyond what the constitution allowsi. These are usually compelling and controversial circumstances regarding

whether Congress has the power to deny the federal courts the

power to hear specific types of casesii. The purpose of j! stripping is to achieve a chance in the substantive

law by a procedural device". Congress can ta3e away j!/ but they cannot overrule SCTOUS

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%. Justiciability4 hat matters the federal courts can hear a. "dvisory Opinion5

i. The federal courts cannot issue advisory opinions due to the separationof powers

ii. To avoid being an advisory opinion4

". There must be an actual dispute between adverse litigants b. Standing5

i. Test4

". 6ou must have suffered or are in eminent danger ofsuffering an injury to a legal right

1. 0ither a recogni,ed legal right

%. " specific grievance/ li3e an individual liberty(. Statutory 7ights

). Something that the court li3es

#. 6ou have to be suing the person that is causing the injury

1. There must be a clear lin3 between the actions

C. 6ou must be as3ing for a remedy that the court can give you1. Money can be redressed

%. f not money/ can the court redress the problem5ii. There is no standing for a generali,ed grievance

". 0!ception4 0stablishment Clause

iii. " third party is usually barred from bringing a claim unless4". f the (rd party is unliely to be able to sue

1. There are substantial obstacles to the (rd party asserting

their rights

%. 7eason to believe that the advocate will represent theinterests of the (rd party

#. "lso4 associations1. Must be able to sue in their own right%. May sue on injuries to the entity8organi,ation or as a

member

(. Members must be affected in a tangible wayC. There is a close relationship between the 9 and the (rd party

1. They are part of the (rd party$s constitutionally protected

activity%. 0!amples

a. *octors for patients

b. :endors for customers

c. Schools for parents*. Overbreath Doctrine1. ;ermits a person to challenge a statute on the ground that

it violates the 1st "mendment rights of (rd parties not beforethe court/ even if the law is constitutional as applied to <

%. Must violate 1st amendment

(. (rd party represented by 9

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c. Mootness5

i. *octrine of standing in a timeframe

ii. There must be an actual controversyiii. The personal interest must e!ist from start to finish

iv. !"ceptions

". #ron$s Capable of %epetition yet !vadin$ %eview1. 7easonable chance injury can happen again to 9

%. njury inherently limited in duration

#. &oluntary Cessation1. The government voluntarily ceases the allegedly

improper behavior

a. Statutory change

b. Court order moot once there is no chance the behavior will resume

d. 7ipeness5

i. Centers on whether the injury has occurred yet/ is it too speculative5

ii. Test4". The hardship to the parties for withholding consent

1. s there a high probability of harm5%. "re there collateral injuries5

(. s there a reasonable threat of specific harm5

#. The fitness of the issue for judicial decision ma3inge. ;olitical 'uestion5

i. The Court does not address issues that are political =uestions

ii. 0!amples

". &oreign ;olicy#. mpeachment

'. Assumin$ the Court has the power to decide the case( is there a

constitutional source of power for the federal le$islation that is bein$

challen$ed?

1. ;ossible sources of power

a. Commerce )ower5i. &ocus of much of the decisions involving the scope of federal power

ii. Congress may regulate4

". Channels of interstate commerce

#. The instrumentalities of nterstate commerce1. :ehicles/ shipping

C. Can regulate intrastate if41. Test4

a. there a rational connection to interstate

commerce5

b. 0conomic in nature

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i. hat is the regulation really intending to

regulate5

*. *oes not apply to situations that are non-economic innature

1. Lopez: guns near schools

%. 7ape laws b. *a"ation and +pendin$ )ower5

i. Congress has broad powers in this area

". Can ta! for the general welfare so long as it does not violateother constitutional provisions

ii. s it a ta! or a criminal penalty5

iii. Congress may place conditions on state grants

". f they are clearly stated#. >ave some relationship to the purpose of the spending program

C. Congress cannot force/ but can compel state action

*. This is a way to be able to regulate things that they cannot

normally regulateiv. ?imits

". 1@th "mendment1. f Congress specifies a law that does apply to the states/

it may be struc3 down

a. "ny law that applies e!clusively to state or localgovernment

b. "ny law that commandeers state or local

governments

#. 11th "mendment1. The federal government cannot ma3e the states liable to

others under the power of sovereign immunity

c. #ar )ower5i. Congress has the e!press power to declare war/ create8regulate armed

forces/ provide for a general defense

". mplied powers to prepare for warii. f challenged/ they are generally dismissed as political =uestions

iii. Only Congress may declare war

C:? 7A>TS ?0AS?"TO2e. ,-th Amendment( +ection 5

i. This is a regulatory power of Congress

ii. Congress can commandeer state governments under the 1)th amendment

". This power is not subject to the 1@ th and 11th amendment

iii. There is a right to remedy and prevent Constitutional violationsiv. To enact legislation/ Congress must show4

". There is a pattern of constitutional violations

1. 0T>07 e=ual protection O7 *ue process violations

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#. ?egislation is congruent and proportional to the violations it is

trying to stop

C. ?egislation applies only to state governments/ not to privateconduct

v. This is the only way to enact this type of legislation to get around

sovereign immunityf. ,/th Amendment( +ection 05

i. ;rohibits slavery and involuntary servitude

". The only thing that deals directly with regulation of individuals#. Congress can enact legislation to this end

ii. Congress has the authority to create a civil cause of action for a statute

of people conspiring to violate civil rights

iii. Congress can apply the 1(th to private entities as part of its authority toeliminate slavery

iv. Test4

". 7ationally determine what are the badges and incidents of

slavery5#. f present/ has authority to regulate

g. ,th Amendment( +ection 05i. 2o one can have their rights denied or abridged based on their race or

color

h. Other5i. Congress has the power to regulate immigration and citi,enship

ii. Congress must approve treaties with a %8(s vote

iii. *omestic "ffairs

". ;ost offices#. Copyrights and patents

C. Aovern interstate compacts

*. #an3ruptcy0. Create lower federal courts

%. "ssuming a source of power/ has the power been properly e!ercised5a. Separation of ;owersBwas the law properly enacted if e!ecutive branch/

is it acting within its powers

i. Aenerally4". Congress may4

1. Ma3e laws

%. *eclare ar

(. 7atify treaties). "pprove some presidential appointments

+. Can overturn the presidential veto

D. *elegate authority to administrative agencies or president

E. mpeach president/ :;/ all civil officers for treason/

bribery/ high crimes and misdemeanors

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#. ;resident may4

1. 0!ecute laws

%. 7epresent country in foreign policy(. &ormulate treaties and e!ecutive agreements

). "ppoint and remove administrative officials

C. Courts may41. *ecide cases

%. nterpret the law

ii. Congress and law-ma3ing power ". Congress can delegate their power to administrative agencies

1. There must be some standard8 intelligible

principles8standards to guide the agency$s e!ercise

of discretion%. 2othing has ever been struc3 down

(. *oes not re=uire any specificity

#. The legislative veto is unconstitutional

1. Congress can only ma3e laws%. Congress C"2 overturn agency decisions as long as

there is bicameralism and presentment(. Cannot delegate e!ecutive powers to itself or agents

). Congress does control the purse strings of administrative

agenciesiii. 0!ecutive ;owers

". Aenerally

1. 2ot clearly defined/ four approaches4

%. There is 2O inherent presidential power a. ;resident can only act pursuant to e!press or

clearly implied statutory authority

(. The president can act without e!press statutory orconstitutional authority so long as the president is

not usurping the powers of another branch

). ?egislative accountabilitya. The president can ta3e any action that is not

prohibited by the Constitution or a statute

+. The president has broad inherent authority

#. :eto1. The line item veto is unconstitutional

a. This would allow a president to veto particular

parts of appropriation bills while allowingthe rest to go into effect

%. Can do an all or nothing veto

C. "ppointment and 7emoval1. Appointment )ower

a. The president alone appts ambassadors and

SCOTUS

b. ;rinciple v. nferior Officers

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i. ;rinciple Officers must be appointed by

the president

ii. Their boss is the presidentiii. Must be approved by the senate

iv. nferior Officers

". Congress can appoint inferiorofficers

#. Can vest this appointment power

in the president/ departmentheads and the courts

C. Can appoint independent counsel

c. Congress may not give appointment power to

itself or its officersi. Cannot appoint people to the &0C

ii. Can appoint investigative and informative

nature staff

%. %emoval )owera. The president can remove people

b. Congress can limit removal if i. f it is an office where independence for

the president is desirable

-"re there good reasons why theoffice should be independent

of the president5

ii. f the law does not prohibit removal/ but

it can instead limit removal toinstances of good cause

-Congress cannot give itself the sole

power to remove ane!ecutive official

c. udiciary may limit removal even in absences of a

statutory provisiond. ndependent 7egulatory "gencies4

i. Congress can limit removal to situations

where there is just cause for firing

e. Special prosecutors can only be removed forgood cause

f. Congress cannot grant itself power to remove

e!ecutive officials/ but may delegate howmuch removal power

*. 0!ecutive ;rivilege

1. This is the president$s ability to have confidentialconversations with his advisors and not have to disclose

them

%. The claim of 0!ecutive ;rivilege is presumptively valid

if made by the president

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(. t is not an absolute power

a. ts scope is determined by the Court

). t must yield to important countervailing interests whenthe need for disclosure is sufficiently great

0. mmunity

1. t is unsettled if a president can be criminally prosecutedwhile in office or if the only remedy is impeachment and

removal

%. " president cannot be sued for money damages orinjunctions while in office

(. The president can be sued for things he did before being

in office while he is in office

). ;olicy4a. The president needs to focus on being president

+. Other e!ecutive officials

a. They have =ualified Fgood faith immunityG when

performing legislative acts b. Unless they violate a clearly established right that

a reasonable person would 3now&. &oreign ;olicy

1. Treaties

a. 7e=uires %8( vote by senate b. f it conflicts with a fed statute/ last one in time

controls

c. Treaties cannot be challenged as violating the 1@ th

d. The president can rescind treaties since the Courtwill not agree to anything as it is a political

=uestion

%. 0!ecutive "greementsa. This has the same effect as a treaty

b. *oes not re=uire the approval of Congress

c. *oes not allow the president to ta3e domesticaction

d. ?asts as long as the presidency

e. f it is inherently domestic/ there is not much that

could be done since it would be dismissed asa political =uestion

A. ar ;owers

1. Challenges to the ;resident$s use of troops would bedismissed as a political =uestion

%. *eclaring and ma3ing war

a. ;resident has power to repel sudden attac3/ toma3e war and to control disposition of the

armed forces

b. ar ;owers resolution

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(. Congress has the e!press power to declare war/

create8regulate armed forces/ and provide for a

general defense>. mpeachment

1. The Court has generally considered impeachment to be a

nonjusticable political =uestion%. Two major issues

a. hat are high crimes and misdemeanors5

b. hat procedures must be followed when there isan impeachment and removal proceeding5

(. ;rocess starts in >ouse/ then tried in the Senate

a. 7e=uires %8(s vote

C. Assumin$ that the federal $overnment has properly e"ercised

constitutional authority( is there an applicable limit on con$ressional

authority?,. Is a Federal Action an unconstitutional violation of +tate +overei$nty5

a. Aenerallyi. State have inherent police power to act for the health/ morals and well

being of their citi,ensii. &ederalism

". There is more freedom with % governments instead of 1

#. The &ederal government may only e!ercise powers delegated inthe Constitution

iii. Congress can Ta!/ Spend and #orrow

". f it is directly regulating people its power is much morerestricted

b. ,1th amendment

i. &eds can$t direct state actionii. "ll non-delegated powers are reserved for the States or the people

". The limit on the Commerce ;ower

. f there is a federal regulatory law/ presumption that it

does not apply to state or local governments. Unless there is a Clear Con$ressional Intent that it was

to "pply to the States

a. Setting Standards to state and local governments b. "ttaching strings to grants

c. &orcing a state agent to enforce &ederal

law

d. The law must clearly be articulated as applying tothe states

#. f the law applies to the states

. 7estrictionsa. Congress cannot enact a law that just applies to

states

b. Statutes of Aeneral "pplicability are o3 1. f law applies to everyone

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c. The federal government cannot commandeer the

State government

%. &eds can restrict funds so long as it is not a penaltyi. s the financial inducement offered by Congress

so coercive as to compel the State to act

accordingly5". So Coercive

. s it a punishment5

. s Congress merely prete!tuallyframing a punishment as a

reward5

. s it an initial offer of

funds8financial inducement or is the government cutting funding

that the state would otherwise

receive5

ii. s the proposed funding a financial inducement or a punishment5

C. f it violates the 1@th amendment/ it may still be upheld underthe Commerce Clause

c. ,,th amendmenti. Aenerally

". Sovereign immunity

#. *ictates classes that cannot be sued

. States/ State "gencies F*epartmentsG

. ?ocal governments functioning as a conduit of the Stateii. hen it does apply5

". &ederal Courts

#. State CourtsC. &ederal "gencies

iii. hat 9s are barred by sovereign immunity5

". Citi,ens of the same or other states Fcannot sue stateG#. States

iv. Sovereign mmunity is larger than the 11th amendment allows

". The Court has declared that it is something inherent in the

Constitution and e!isted before the constitution#. The state can still assert S even if the 9 is only see3ing

injunctive relief

v. hen does Sovereign mmunity 2OT apply5". ?egislation enacted pursuant to 1(th/ 1)th/ or 1+th amendment

. ndividuals may recover money damages against the state

if 4a. There is a pattern of discrimination by the

States which violate the 1)th

amendmentFonly real way around SG

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b. There is a proportional and con$ruent remedy

imposed by Congress

#. US governments and States can sue another State. 0!ception4 State must be protecting its own interest

a. State cannot sue to collect debts of its own

citi,ens8will not allow circumvention of 11th

amendment by allowing states to litigate

their citi,en$s claims

C. "dmiralty*. State Officials can be sued for injunctive relief

. Ultimate effect of 11th amendment-no money damages

. There are specific individuals that can be held liable/

prison wardens/ etc.0. City/ School #oards/ County governments-if not acting as the

State

&. aiver4 State may waive S by statute or other clear e!ception

%. Civil ri$htsa. !23AL )%O*!C*IO45

i. Aenerally". 1)th amendment guarantees that no state shall deny to any

person e=ual protection of the laws

#. f a law classifies people based on who they are/ the law mustmeet the appropriate test

. ?aw may be overinclusive8underinclusive

a. Too few or too many

ii. Test4". Is there a $roup based classification?

. >ow is the government distinguishing between people5

. Classification on its face5a. Clear from language of the law

. Classification in its intent5

a. Must show purposeful discrimination b. *iscrimination must be a motivating factor

c. f it is based on choices more li3ely to pass e=ual

protection

d. f it is passed on inherent characteristics/ problem:. Mere discriminatory impact does not =ualify

#. If there is a $roup based classification( which level of

scrutiny applies?

. Strict Scrutiny

a. The burden is on the government

b. Test1. There is a compelling state interest

%. The government action is narrowly

tailored to that interest

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a. The law is necessary to achieve

that interest

b. There is no less burdensomealternative available to

achieve that interest

c. Things that are always SS1. 7ace

%. 7eligion

(. 2ational Origin. ntermediate Scrutiny

a. This test is the middle ground

b. Test

1. s there an important governmentalinterest

%. s the government action substantially

related to that nterest5

c. 7e=uires and e!ceedingly persuasive justificationd. ncludes

1. Aender %. 2on-marital children

(. "lienage

. 7ational #asisa. This is the minimum level of scrutiny that the

Court will apply

b. Test

1. "s long as there is a rational basis for thelaw/ it does not violate 0=ual ;rotection

c. Court will overturn the law only if it leads to

animus and invidious discrimination1. ?aw attac3s a group

%. #ased on a group$s immutable

characteristics(. Court needs to be totally offended by the

law

iii. %ace

". Test. Is there a racial classification5

a. *oes it discriminate on its face5

b. *id the government purposefully intend toclassify individuals based on their race5

1. There must be intent and actual

discrimination%. naction is not discrimination

. If so( does it meet strict scrutiny5

a. s there intent based on the facts5

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b. S there a compelling state interest that is

narrowly tailored5

1. CS4 7emedying past discrimination%. 2T4 s it the least intrusive measure to

advance the interest

#. ;ermissible 7ace Consciousness. 7emedying ;ast *iscrimination

a. Must be shown by the same < and must be past

proven racial discrimination b. Must ta3e race into account only by what is

necessary to fi! the problem

. "ffirmative "ction

a. *iversity in education is a compelling stateinterest

b. Must be e!amined in a holistic manner

c. Cannot arbitrarily give e!tra points

iv. 6ender". Test

. s there a gender based classification5

a. *oes it separate people by gender5

b. s the law based on stereotypes5c. Classification on4

1. ts face5

%. "s applied with an intent to discriminate5

. *oes it meet the appropriate level of scrutiny5a. ntermediate level of scrutiny

1. mportant government objectives

%. The law must be substantially related tothose objectives

(. 0!ceedingly persuasive justification

#. ;ermissible justifications. "ffirmative "ction of omen is fine

a. 7emedying past discrimination

. Aovernmental considerations for helping men are not o3

. The Court is generally deferential to the military:. 0conomic discrimination is 2OT allowed or laws based

on the woman$s role in the family and home

:. 6ou can have some gender classifications based on biological differences

v. Aliena$e". State Aovernments

. There is a presumption of SS

. ;reemption applies to the States in this "rea

a. Since it is immigration8naturali,ation8foreign

policy

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. f the law is 2OT preempted

a. Strict Scrutiny

1. ;resumption b. 7ational #asis

1. f it is a law re$ardin$ +elf 6overnance

and the Democratic )rocess". Teachers/ judges

#. 2ot4 notary public

C. t is 2T to those who participatedirectly in the formulation/

e!ecution/ or review

of broad public policy and hence

perform functions that go to the heart ofrepresentative government

#. &ederal Aovernment

. SS

a. Congress can ma3e laws in this area b. f it is an administrative agency/ they are subject

to SSvi. 4on7marital Children

". Test

. ntermediate Scrutinya. s there an important interest served5

b. s the law substantially related to that goal5

#. t is unfair to penali,e the children for the actions of their parents

C. Three ;rinciples. ?aws that provide benefits to marital children but not non-

marital children are always unconstitutional

. ?aws that provide a benefit to some non-marital children areevaluated on a case by case basis under S

. ?aws that create statutes of limitation on the time to allow non-

marital children to be hearda. Must be substantially related to the state$s interest in

protecting the fathers from false claims

vii. 8ore %ational 'asis

". "ge *iscrimination#. ealth *iscrimination

. ;oll ta!es are illegal

. ;overty is not a suspect class since it can changeC. *iscrimination *ue to a *isability

. The "*" offers protection in this area

*. Se!ual Orientation. Still not completely settled

b. D3! )%OC!++5

i. ;rocedural *ue ;rocess

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ii. Substantive *ue ;rocess4 F&undamental 7ightsGThese rights are protected by both 0=ual ;rotection and *ue ;rocess

&or *;4 s the government$s interference justified by a sufficient

purpose5

". &amily4

. Marriagea. The right to marry is a basic one

b. Cannot prevent interracial marriages

c. 6ou cannot have any sort of road bloc3s to getting amarriage license

1. Unconstitutional to ma3e someone be up to date

on child supportd. ;risoners have a right to get married

e. Social Security

1. *isabled children can lose it when they get

married

%. *ivorced widow8ers can lose benefits if theyremarry

. Childrena. ;arents have a fundamental right to their children

b. f the State see3s to terminate custody/ there must be a

compelling reason to do so. Unmarried &athers

a. f a father shows no interest in his child/ he may lose

rights to it

b. 0ven if a father is involved in the life of the child/ if themother is married to someone else/ the Court allows for an

irrebuttable presumption that the child is of the husbandc. The Court uses tradition as the major reason for this:. 7aising Children

a. ;arents have a right to raise their children how they want

b. The State can only interfere if it is necessary to protectthe child

c. Areat deference is given to parents

d. There is some protection to grandparents to be able tosee their children

:. ?iving Together

a. There is a right to 3eep the family together

b. >owever/ the protection usually only e!tends to peoplethat are related to each other

#. 7eproductive "utonomy

. The right to procreate is fundamental . "ccess to contraceptives is viewed as a right to privacy

issue

. "bortiona. There is a right to a pre-viability abortion

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1. "fter this period it is o3 only if the life of

the mother is in danger

%. The government may not place an undue burden

that creates a substantial obstacle

". " %) hour waiting period is fine

#. State does not need to fund abortions oruse government facilities to obtain

one

(. ;arental notifications". O2?6 OJ &4

i. The woman is a minor

ii. There is a bypass procedure

a. Usually judge whodecides if the procedure is in

the best interests of

the child

C. Se!ual Orientation and "ctivity. >omose!uals can engage in conduct of their choosing

. This is a right to privacy issue. "lso a right from unreasonable government intrusion

:. Test

a. *oes the law meet S5 F6es/ genderG b. s the law because of animus5

a. ?oo3 to intent of the law

*. Medical Care *ecisions

. There is a right to refuse unwanted medical decisionsa. To refuse treatment

b. To 3eep the government out of certain established

medical proceduresc. There is 2OT a right to commit suicide

d. The State can re=uire clear and convincing evidence of

the person$s consent re decisions if the person in=uestion is not competent to ma3e them

. f it is an invasive procedure/ you can refuse it

a. &luoridating water is not restrictive

. The government does not have to provide medical servicesunless

a. 6ou are in government custody

b. The government created the danger :. The State may prevent family members from terminating

treatment for each other 5

a. The right belongs to the individual0. Travel

. There is a fundamental right to interstate movement

. ssue4 *oest the classification penali,e or significantly burden

the right to travel5

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a. The State may not4

1. ;ut up barriers

%. *iscriminate against person on the basis of howlong they have been living in the state

b. f it does SS applies

. This right involves the *CC and ;K:. &oreign Travel is SS

:. The State may not discriminate based on length of residence

:. f the benefits are portable/ the State can re=uire Aood &aithresidency

:. *ivorce

a. 6ou can ma3e someone wait to divorce

:. States can prevent criminals from leavingL. *urational 7esidency 7e=uirement

a. SS applies if a person must live in the j! for benefits to

3ic3 in

1. Medical care/ welfare%. +@ days to vote is fine

(. One year for divorce is fine b. ?oo3 to see if all residents benefit or just those who have

been in the area for a specified time

c. Must be able to change their status if someone moves tothe area

1. Cannot be a permanent segregation

L. " State may favor their residents/ subject to the Commerce

Clausea. Can be residents v. nonresidents

1. Cannot distinguish between classes of residents

&. :oting. This is essential to a democracy

. n general4

a. 0lections are re=uired for president and Congress b. f a state has an election/ there is a right to vote in it

c. 6ou cannot limit voting to property owners

1. OJ only for limited elections F>%@ boardG

. There is a right to have each vote counta. One person/ one vote

1. *oes not apply to the feds

b. Aerrymandering4 7edrawing lines to favor one groupover the other

:. To show a violation

a. There must be intentional discrimination against anidentifiable political group

b. There must be an actual discriminatory effect on that

group

:. There is a right to run for office and be on the ballot

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a. SS applied if there are substantial barriers to ballot

access

b. " threshold showing of support is not a substantial barrier

:. ;olitical ;arties

a. f there is substantial interference with ballot access/ SSapplies

b. Open primaries are unconstitutional

c. ;rimary re=uirements1. 1H mos is fine

%. % years is too much

A. 0ducation

. This is 2OT a fundamental right. f a law gives free public education to citi,ens/ it is an 0=ual

;rotection violation

iii. Test

". f it is found to be a fundamental right Fone of the above rightsGthen Strict Scrutiny is applied

. Testa. s there a fundamental right5

b. s there a direct and substantial restriction5

c. s there a compelling government reason to restrict thatright5

d. s the government$s proposed statute 2arrowly tailored5

#. Otherwise/ it receives 7ational #asis review

c. &reedom of speech

i. s the $overnment actin$ as a spea3er/ proprietor or administrator or are

they regulating8censoring what is being said5". s the government interfering with the group$s message5

ii. f the governing is re$ulatin$5". s there a permissible target of the regulation5

. Time/ ;lace or Manner restrictions

a. ntermediate scrutiny

b. The government is saying that you can or cannot do

somethingc. s the government intentionally regulating something5

1. t can only be T;M if it is content neutral

. Unprotected Contenta. ncitement

1. ntended to produce imminent lawless action

%. ?i3ely to produce imminent lawless action b. &ighting ords

1. ords that by their very nature will tend to incite

an immediate breach of the peace

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%. Must be a direct insult aimed at someone in

particular

c. ;rovocation1. Speech li3ely to cause imminent violence on the

spea3er

%. The police have an obligation to notunnecessarily stop the speech unless they

have a good faith reasonable belief that they need

to

d. "ssault1. Spea3er intended speech to stri3e fear of

imminent harm to as understood by a

reasonable person

e. Obscenity1. ;ossession in the home cannot be stopped

%. *ef4 Speech that the average person usingcommunity standards would find to appeal

to the prurient interest

(. Must show or describe se!ual conduct that ismentioned in the statute in =uestion and it

must show the conduct in a patently offensive

way

). Ta3en as a whole must lac3 serious redeemingartistic/ literary or scientific value

f. Child ;ornography

1. This is damaging to children%. ncludes any sort of se!ual acts with children

(. f there are no real minors being used/ then it is

protected speechg. &alse or Misleading Commercial Speech

1. 7estricted if an unlawful product

%. hen it says one thing but does not do it

". )@ mph when actually 11(. To regulate truthful speech there must be

". Substantial interest

#. 7egulation is substantially related to thatinterest

. :iewpoint *iscrimination

a. This is 20:07 permissible:. f it is content based restriction4

a. Strict Scrutiny applies

b. "lmost always found to be not constitutional

#. f the target is permissible/ is the speech fit8constitutional5

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. Time ;lace Manner

a. ntermediate Scrutiny Fcloser to rational basisG

. f unprotected contenta. Compelling State interest

b. 2arrowly tailored

1. Can O2?6 bloc3 the unprotected speech%. f it bloc3s more/ then struc3 down

. f protected commercial speech

a. ntermediate scrutiny:. "ttac3s on the &it of a regulation

a. :ague

1. " reasonable person cannot tell what is being

restricted b. Too #road

1. hen it restricts too much speech

c. Too narrow

1. hen it is censoring a viewpoint:. Content #ased

a. Strict Scrutiny b. "lmost always not allowed

iii. "re there any procedural restrictions5

". ;rior 7estraints. This is an injunction against speech

a. ;reemptive Stri3e

. 7e=uire >eightened Strict Scrutiny

#. ?icenses8 ;ermit 7e=uirements. They are o3 if there is no discretion involved

. Must be first come/ first serve

. Must be a good reason:. Must have clear standards

d. &reedom of 7eligioni. 0stablishment Clause

". Aenerally

. There can be no state religion

. One religion cannot be favored by another . t is more important to not have religion in the schools since

children are young and impressionable while adults can see

the history for including prayer at things li3e legislativeopenings

#. Test

. s the primary purpose to advance4a. One religion over another

b. 7eligion over non religion

. s the primary effect to advance4

a. On religion over another

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b. 7eligion over non religion

c. Must be neutal in the effect

. >owever/ this doesn$t mean neutral in reality/ isthere a problem when the school options are

C. or public and you are Muslim5

. s there too much entan$lement between the government andreligion

ii. &ree 0!ercise

". There is a violation if the Aovernment intends to interfere with a person$s free e!ercise of religion

. Standard4 s it neutral to all religions5

#. Locke v. Davey: State did not violate &ree 0!ercise by refusing to

fund devotional theology instruction. Training and fundingare different one is more of a calling than the other

II. Analy9in$ the Constitutionality of a +tate +tatute

". s the case justiciable51. See above analysis

#. 2o need to identify a constitutional source of power. State is sovereign

C. s there a ?imit on State ;ower5

1. )rivile$es : Immunities Clausea. "rticle :

b. Only concerned with individuals/ not businesses or aliens

i. The citi,ens of each state shall be entitled to all of the privileges

and immunities of citi,ensc. States cannot discriminate against out of staters

d. T0ST

i. >as the State discriminated against out of staters in their". &undamental Constitutional 7ights

. Must have meaningful access to courts

. Must be able to dispose of property. Must have access to medical care

#. 0conomic ?ivelihood

. Must be able to practice a trade or profession. States cannot mandate preferential hiring to in

staters

. States cannot charge discriminatory licensing

fees

e. t is not absolutef. *oes 2OT preclude discrimination against nonresidents where

i. There is a substantial reason for the difference in treatmentii. The discrimination against nonresidents bears a substantial

relation to the state$s objective

". Must be proved to be necessary to achieve a stateinterest

%. Dormant Commerce Clause5

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a. Aenerally

i. " restriction on a State$s ability to interfere with interstate

commerceii. Threshold4 *oe the state or local law violate interstate

commerce5

". 0!ceptions. Congressional approval

. Mar3et participant

a. " State may favor its own citi,ens indealing with government owned

business and in receiving benefits

from government programs

b. The State must be an actual participatorand not just a regulator in the mar3et

in =uestion

iii. " law will be found to be discriminatory either if it facially

discriminates against out of staters or it is facially neutraland is deemed to have a discriminatory purpose or impact

". The Court will uphold some highway laws#. The Court will generally stri3e down laws that regulate

the out of state conduct of business

b. T0STS4i. *oes the State mpermissibly discriminate against interstate

commerce5

". s the law facially discriminatory5

#. *id the law have a discriminatory purpose5. Strict Scrutiny

a. s there a compelling state interest5

b. s the law narrowly tailored to achievethat interest5

ii. *oes the State action substantially burden interstate commerce5

". #alance the burden against the needs of the state#. Use if the law is not discriminatory

(. +upremacy Clause ;)reemption


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#. Or State law stands as an obstacle to the

accomplishment and e!ecution of the full purposes

and objectives of Congress*. s there an applicable constitutional right5

Documents

Con-law Rosenberg f04 2