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Constitutional Law (Bill of Rights Analysis Steps (Identify the state…

- - - - Art III reqs a person to show: 1) injury in fact (actual or imminent injury that is direct and personal), 2) causation (injury was caused by the challenged action) and 3) redressability (P will benefit from the remedy sought in the litigation)
      - Third-Party Standing
        
        A party may have standing to enforce the rights of a 3rd party if: 1) a special relationship exists b/w the claimant and the 3rd party b/c of the connection b/w the interests of the claimant and the const'l rights of 3rd person (i.e doc-patient in an abortion case, buyer-seller) AND 2) the 3rd party is unable or finds it difficult to bring suit on his own behalf
        
        An organization has standing to assert claims of its members if:
        
        the members would have standing to sue in their own right
        
        the interest asserted is germane to the organization's purpose, and
        
        neither the claim asserted nor the relief requested reqs participation by the individual members in the lawsuit
        
        Taxpayers lack standing to challenge gov expenditures EXCEPT for a potential Establishment Clause violation (expenditures for religions)
    - - something in the C suggests that ultimate decision-making authority is given to another gov actor (i.e. foreign affairs)
      - the required decision is political rather than legal in character
      - Qualifications for a leg position: if the candidate meets the C'l reqs (age, citizenship, residency) and is being denied their seat for another reason, SCOTUS will hear the case. If one of the reqs (residency) itself is at issue, that issue should go to the leg chamber to figure out, not SCOTUS
      - Political party gerrymandering is a political Q, ct would not know how to resolve. Racial gerrymandering touches on EP and ct can review it
  - - - controversies to which the US is a party
      - controversies b/w 2 or more states
      - cases b/w a state and citizens of ANOTHER state
      - cases b/w citizens of diff states and the amt in controversy is over $75k (diversity)
      - cases affecting ambassadors and consuls
- - - - Property that one already has: public education, welfare benefits [need PRE-termination hearing, b/c based on need], retention of driver's license, public employment (but not if at-will), prejudgment garnishment, forfeiture of property, and business licensing. For most, a post-termination hearing is sufficient
      - Life: capital punishment (but not right to die or abortion--other sections than procedural DP)
      - Liberty: freedom from bodily restraints, physical punishment, and commitment to a mental institution, engaging in gainful employment
    - - the importance of the individual interest protected
      - the risk of an erroneous deprivation of this interest through the procedures used, and
      - the gov's interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that alternatives would entail
  - - - right to vote: 1st Amd right of association + 14th amd. SS w/ least restrictive means (residency, age, right to be a candidate, payment of filing fee, citizenship regs ok if not too burdensome -- RB-like "undue burden" test. Political affiliation: SS). "roadblock vs speedbump"
        
        Other voting rights:
        
        26th Amd: right to vote for citizens 18 years or older
        
        19th Amd: states cannot discriminate w/ respect to sex
        
        15th Amd: states cannot discriminate w/ respect to race
        
        24th Amd: no poll taxes
        
        Restrictions that are C'l:
        
        reas regulation of time and manner of casting votes
        
        denying felons the right to vote -- SS b/c total ban (but it passes SS)
        
        reas residency and voter registration reqs
        
        One-person one-vote rule does not apply to special, limited-purpose voting districts like a water storage district
        
        Restrictions that are unC'l:
        
        can't req voters at school board elections to own property
        
        can't count votes using standards that lack uniformity or are too vague
        
        Discriminating in voting (one person, one vote)
        
        Reapportionment (Gerrymandering)
        
        Ballot restrictions based on "special interests" (land ownership, parent of kid in school there)
      - Privacy rights: CAMPERS
        
        Procreation
        
        Private Education: parents have a right to privately educate their children outside the public school system
        
        Marriage (except for laws about how you can't marry, like incest and nonage, which don't get SS)
        
        Family Relations: States cannot prohibit members of an extended family from living in a single household. States CAN ban unrelated persons from living together in a single-family residence.
        
        Abortion: Any regulation on a pre-viability abortion is unC'l if it imposes an undue burden on a woman's right to choose an abortion. Even after viability, must have an exception for the life or health of the mother.
        
        Examples of undue burden
        
        spousal consent or notification req
        
        recording the names of patients who seek abortions
        
        total abortion ban
        
        requiring minors to get parental consent without a judicial bypass option
        
        Examples of NO undue burden:
        
        req'ing docs to give truthful, non-misleading info to women seeking abortions
        
        refusing public funds
        
        a prohibition on certain methods of abortion if they are not the safest
        
        a 24-hour waiting period
        
        req'ing minors to get parental consent with a judicial bypass option
        
        Sexual Relations (private adult consensual activity)
        
        Contraceptives
      - Possession of obscene material: right to possess obscene material (except child pornography) in the privacy of one's home, but no right to buy or sell the same material
      - Right to die: right to refuse unwanted medical procedures (life support) but no right to physician-assisted suicide
    - - Rational basis (RB): P must show that the law is not rationally related to any legit gov interest
      - Strict scrutiny (SS): gov must show a compelling gov interest and there is no other way to serve that interest
    - - Sexual Orientation: states cannot ban homosexual intimacies and autonomy (RB)
  - - - the reg deprives the property owner of all economically beneficial use to the property or
      - balance the econ and physical impact of the reg on the property owner, as well as the duration and character of the gov action
      - regulation reqs the property owner to suffer some permanent physical invasion
- - - - Gov as speaker When the gov is the speaker, not a private actor, gov may discriminate based on the content of the speech
      - Unprotected Speech (despite being content-based): HAFWOUD
        
        Fighting Words: words likely to incite acts of immediate physical retaliation that are more than annoying or offensive. There must be a genuine likelihood of imminent violence (a direct, personal insult)
        
        Hostile Audience Speech: speech that elicits an immediate violent response against the speaker by an audience may be grounds for prosecution. Police must make reas efforts to protect the speaker, guard against a "heckler's veto" of unpopular speech.
        
        Speech that advocates violence or unlawful action: speech is 1) "directed to inciting or producing imminent lawless action (subjective) and 2) is likely to incite or produce such action" (objective)
        
        Obscene Speech 3-part test: 1) an average person applying contemporary community standards would find that the work, taken as a whole, appeals to a prurient interest, 2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law, and 3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value (SLAPS)
        
        Defamatory Speech: Const'l restrictions on what is considered defamatory speech apply where the P is either a public official or public figure or where the statement involves a matter of public concern.
        
        Private person, matter of private concern --> no proof of malice or neg needed
        
        Private person, matter of public concern --> must prove neg about the truth or falsity of the statement (no malice req)
        
        Public official/figure (matter of public or private concern) --> must prove "actual malice" (knowl of the falsity or reckless disregard of the truth or falsity of the statement)
        
        Private person suing media for false-light invasion of privacy concerning matter of public interest --> must prove actual malice. Newspaper/broadcaster is never liable for publishing truthful info obtained from a public record (or anything newsworthy or true)
        
        totally banning child pornography, even the private possession of, passes SS
    - - Conduct-based regulation: If the reg creates an incidental burden on speech, it is allowed if it 1) furthers an important or substantial gov interest unrelated to the suppression of free expression, and 2) the incidental restriction on speech is no greater than is essential to the furtherance of that interest
      - Commercial Speech: not protected if false or deceptive or if related to unlawful activity (RB).
        
        Gov can regulate only if the regulation:
        
        is not more extensive than is necessary to serve that interest (narrowly tailored)
        
        Serves a substantial gov interest
        
        directly advances the substantial gov interest
        
        Examples:
        
        A state can: 1) discipline lawyers for in-person solicitation of clients for personal gain, 2) prohibit commercial billboards (for hwy safety)
        
        A state cannot: ban all ads of drug prices or legal services
      - Regulations of time, place, and manner of speech are allowed.
        
        Public forums such as streets, sidewalks, and parks -- places traditionally open to the public
        
        3-part test:
        
        Reg must be content-neutral as to subject matter, speaker, and viewpoint (licensing officials can't have too much discretion in determining permits and their prices)
        
        Reg leaves alternative channels of communication open
        
        Reg must be narrowly tailored to serve a significant/important gov interest
        
        Examples:
        
        Gov can: 1) require large gatherings to get a permit to use public property (the criteria to receive a permit must be defined and content-neutral), 2) restrict the volume and hours of amplifiers
        
        Gov canNOT: 1) require parades or marches to pay for police protection, 2) enact a complete ban on door-to-door solicitation
        
        Non-Public Forums: Gov property dedicated to a non-speech purpose (city bus, airport terminal, military base, gov workplaces): Reg must be 1) viewpoint-neutral and 2) reas related to a legit gov purpose. Examples:
        
        Gov can: 1) prohibit demonstrations on jailhouse grounds, 2) close military bases to political speeches and distribution of leaflets, 3) regulate speech in gov workplaces, 4) sell commercial ads on a city bus but refuse to sell such space for political ads
        
        Gov canNOT: deny use of public school facilities to religious groups if other public and private groups are allowed similar access
      - Sexual or Indecent Speech: indecent speech is fully protected but can be regulated on the basis of secondary effects. Secondary-effects regs must serve a substantial gov interest and leave open reas alternative channels of communication. (zoning regulations for adult theaters b/c they might lead to crime and low property values). Banning public nudity or all nude dancing is C'l
      - School children: public school children can be disciplined for speech that is potentially disruptive
      - Public Employment:
        
        Public employees may be disciplined or fired for speech if: 1) the speech is not a matter of public concern or 2) the speech is potentially disruptive of the workplace (even if the speech is on a matter of public concern)
        
        cannot be denied public employment, except a high-level policy-making position, based on membership in a political organization. An individual may be denied public employment based on political ass'n if:
        
        he has knowl of the illegal aims of the organization, and
        
        he has a specific intent to further those illegal needs
        
        he is an active member of a subversive organization (overthrowing US Gov)
        
        Loyalty oaths required of public employees are allowed if not overbroad or vague. It is C'l to require public employees to support the US C. Lawyers can be required to swear to support and defend the C.
      - Bar Admission: states are permitted to inquire into the qualifications and fitness of candidates for admission to the bar
      - Prisoners: can regulate speech as long as rationally related to legit penological objective
  - - - Where an individual's conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is "1) neutral in respect to religion and 2) is of general applicability" If the law passes this test but has an incidental burden on the conduct, RB scrutiny applies. If the law fails to satisfy that test, it must pass SS or is unC'l. If law has incidental burden and P can show that the PURPOSE of the law was the suppression of religion, SS applies -- Employment Division v. Smith
        
        Applications (OK):
        
        outlawing polygamy
        
        Jewish Air Force doctor violating uniform dress reqs by wearing a yarmulke while on duty
        
        criminalizing possession of peyote w/ no exception for American Indians who use peyote for religious rituals
        
        applying Social Security tax to a Amish employer whose religious beliefs prohibited him from making payments and receiving benefits
        
        Exceptions (cases that haven't been overruled, but the law would prolly would be ok under Smith):
        
        states can't deny unemployment benefits to a person whose religious faith observes Saturday as the Sabbath
        
        states can't require Amish children to attend high school
    - - General Analysis:
        
        Step One: All explicit sect preference laws are subject to strict scrutiny
        
        Step Two If no sect preference (neutral on its face), Ct analyzes the leg under the Lemon test:
        
        3) The statute must not foster an excessive gov entanglement w/ religion
        
        1) The statute must have a secular leg purpose
        
        2) The principal or primary effect or purpose must neither advance nor inhibit religion (a clergymember can be appointed to a comm'n)
      - Religious Activities Conducted at Public Schools: Valid: religious club holding its meetings in a public school. School prayer is per se unC'l. Other invalid activities at public schools:
        
        period of silence "for meditation or voluntary prayer"
        
        posting 10 Commandments on the walls of classrooms
        
        Rabbi/other cleric to conduct non-denomination prayer as part of a graduation ceremony
        
        prayer before a HS football game
      - Public School Curriculum: State cannot put religious classes in public schools (i.e. anti-evolution laws)
      - Other Gov Endorsement of Religion
        
        Examples of C'l action:
        
        posting the 10 Commandments a as a monument along w/ other monuments surrounding the State Capitol
        
        Sunday closing laws
        
        including a creche in a x-mas display in a park, esp. where there's also a Santa Claus and candy canes
        
        a state legislature paying a pastor to open the leg session with a nondenominational prayer
        
        Examples of unCl' action:
        
        Placing the 10 Commandments on the walls of courthouses in unC'l (no secular purpose)
        
        Delegation of authority to religious organizations is unC'l
      - Tax Deductions for Religious Institutions: A property tax exemption for religious institutions is valid if treated the same as other non-profits. A tax exemption from sales and use taxes avail only for the sale of religious magazines and books is invalid endorsement of religion
      - Gov Aid to Religious Schools: Neutrality (same aid to all schools) is ok
        
        States can provide money to both public and private schools for: (secular use)
        
        standardized secular exams
        
        school lunches
        
        library media materials and computers, and
        
        interpreters for deaf students
        
        secular textbooks
        
        States cannot give money to:
        
        Be used directly for religious instruction or
        
        religious secondary schools (HS) for salaries of teachers of secular subjects (risk of "excessive gov entanglement"). May give such $ to secular profs at the Uni level
        
        Forms of valid Gov aid: OK if it's the parent's choice to send kids to private schools
        
        giving a tax deduction to all parents based on actual expenditures for children attending any public, private, or religious
        
        A voucher program that allows parents to send their children to parochial or religious school w/ state aid
        
        providing bus fare for both public and private (including some religious) schools
      - Providing Public Services Through Religious Institutions: If the gov has a sex ed program where it give funding to both secular and religious organizations to carry out the program, it is C'l
- - - - Veto power over Congress's legislation. President has 10 days to act, or else the proposed leg becomes law. Can "pocket veto" a passed bill by not signing it at the end of the congressional term. Congress has the power to override a veto by 2/3 vote in both houses. A line-item veto hs been held unconst'l. Only Congress can amend leg
      - Appointment power: ambassadors, SCOTUS justices, and all other officers of the US
        
        Appoints "high-level officials" w/ advice and consent of the Senate. Congress can delegate appt of "inferior" officers (anyone who has a superior) to the Pres, the judiciary, or the head of an agency, so that the appt happens w/ no senate confirmation. Congress itself may only appoint officials to exercise such investigative power as it might delegate to one of its own committees (it may not appoint agency members or other US officers).
      - Removal Power: Pres may remove any exec appointee (cabinet member) w/o cause. Pres must have cause to remove exec officers who have fixed terms and officers who perform judicial or quasi-judicial functions (e.g. member of the FTC, an ALJ) (and the only way to remove Art III judges is through impeachment)
        
        The Pres cannot remove someone tasked with investigating him
      - Pardon power Limitations: can issue pardons for federal crimes only. A pardon cannot undo an impeachment (since it is not a criminal conviction)
      - Executive Orders: binding law on Fed agencies
    - - President has the power to deploy military forces but does NOT have the power to declare war
      - If congress has not declared war, pres's powers are limited to: using military force in response to a surprise attack upon the US (but can't initiate an attack)
      - If pres and congress disagree, pres prevails w/ respect to battlefield tactical decisions
    - - Power to make treaties with foreign nations, which require the consent of 2/3 of the Senate before enactment. Treaties have the same status as fed law and will override earlier fed law (and vice versa). Treaties also take precedence over any conflicting state law.
      - Executive agreements: Pres may enter into exec agreements w/ foreign nations (does not require Senate approval). Fed law: exec agreements do not prevail over fed. State law: exec agreements prevail over inconsistent state law.
  - - - Commerce Clause: Congress can regulate: 1) channels of interstate commerce such as hwys, waterways and air traffic, 2) instrumentalities of interstate commerce such as cars, trucks, ships and airplanes, people (child labor), and 3) activities that have a "substantial econ effect" upon interstate commerce
        
        Substantial econ effect test: Congress must show that 1) the regulated activity is econ in nature and 2) that the regulated activity, when taken cumulatively throughout the nation, has a substantial effect on commerce
        
        basically, the only thing Congress CAN'T regulate is completely intrastate non-economic activity, like mere possession or violent crime
        
        Exception: can regulate intrastate non-econ activity only if there is a "comprehensive scheme"
      - Congress has the power to lay and collect taxes, duties, imposts, and excises. A congressional act purporting to be a tax should be upheld as a valid if it 1) raises revenue (objective standard) or 2) was intended to raise revenue (subjective standard). Congress can use its taxing power to achieve a regulatory effect as long as Congress has the power to regulate the activity taxed. If Congress does not have the authority to regulate the activity, the tax will still be upheld if it does raise revenue. (A tax is invalid if it operates solely to punish or regulate conduct).
        
        State taxation of interstate commerce is permissible as long as the tax does not 1) discriminate against or 2) unduly burden interstate commerce. Cts generally require:
        
        the tax must be fairly apportioned
        
        the tax must not discriminate against interstate commerce, and
        
        There must be a substantial nexus b/w the activity taxed and the taxing state
        
        the tax must be fairly related to the services provided by the taxing state
      - Spending Power: Congress can spend for the general welfare (almost anything meets this test) and require that the funds will be spent as directed. Congress may place a condition on the receipt of fed funds by a state if:
        
        The condition is related to the fed program (relatedness)
        
        The state is not req'd to undertake unC'l action, and
        
        The condition is unambiguous
        
        the amt in question can't be so much that the state is "coerced" into accepting the funds
        
        The spending serves the general welfare
      - War and Defense Powers: 1) Congress declares war, 2) during wartime, Congress may institute a draft and initiate wage, price, and rent control of the civilian econ
      - Civil War Amds (13, 14, 15): to enforce these Amds:
        
        State govs must have engaged in widespread violations of the amd and
        
        the leg remedy must be "congruent and proportional to" the violation
        
        w/ respect to 14th and 15th Amds, Congress may only regulate states, not private individuals. Congress can overcome state sovereign immunity (authorize money damages)
        
        Congress has to create a record, to show there is a problem that its addressing w/ leg
      - Delegation of Power: Congress can create an exec agency and give the agency some leg power. Actions of an agency will prevail over inconsistent state law
        
        Limitation: Must be some "intelligible principle" that guides the agency
      - Federal Property Power: public land regulation
    - - Enabling clauses of 5th and 14th Amds = may enforce the 13th, 14th and 15th Amds "by appropriate leg"
      - Nec and Proper clause = implied power to make laws that are "nec and proper" to carry out an enumerated power
      - Enumerated Powers = powers stated in the C (Art 1 sec 8)
- - - - If a state law discriminates on its face b/w in-state and out-of-state econ actors, the state must show that 1) the reg serves a compelling state interest and 2) the reg is narrowly tailored (necessary) to serve that interest
      - If a state law merely incidentally burdens interstate commerce, the state must show that the reg 1) serves an important state interest and 2) the burden on interstate commerce is not excessive in relation to the interest served
      - Exceptions: 1) Congress may affirmatively authorize states to legislate in areas that would violate the DCC, 2) states acting as market participants may discriminate b/w in-state and out-of-state business
- - - - Race: P's burden to show discriminatory on face OR effect AND purpose, and then SS applies (Gov's burden). If P fails initial burden, P retains burden at RB level. (Also SS if discriminatory application of a neutral law, like cops only pulling over certain races)
        
        De facto segregation: segregation in fact but not by operation of law. NOT discrimination b/c no state action
        
        May pass SS for classification based on race where:
        
        Police are separating a crowd by race in the middle of a riot or
        
        affirmative action
        
        compelling interests for affirmative action: 1) remedying the effects of past discrimination by the state, and 2) achieving a diverse student body in an institute of higher education
        
        De jure segregation: laws that deliberately segregate on the basis of race. Will almost always be found unC'l
      - Alienage discrimination by states
        
        Resident aliens: when states discriminate against resident aliens, apply SS. (fed gov alien discrimination must have a rational relationship to a legit interest in foreign policy or national security. Congress has plenary power over immigration.)
        
        Public-function exception (RB): some jobs or activities may be withheld from resident aliens, including: 1) police officers, probation officers 2) elected gov officials, 3) public school teachers 4) jurors. Not purely ministerial (like notary public)
        
        Illegal aliens: when states discriminate against undocumented immigrants, apply RB
    - - Illegitimacy
      - Sex: usually unC'l if based on gender stereotypes. Usually C'l if based on real biological differences (diff. statutory rape ages b/c wanting to prevent teen pregnancy)
        
        Examples of unC'l laws: 1) authorizing alimony payments to women but not to men, 2) higher drinking age for men than for women. VMI: can't have a single-sex education opp only available to one sex (single-sex education ok if equal opps)
        
        Affirmative action: Benign discrimination in favor of women gets upheld to make up for past discrimination either by the person who is offering the remedial program or to make up for societal discrimiation
        
        Examples of C'l laws: 1) mandating men to register for military draft but not women, 2) state statutory rape laws may set the age of consent higher for females than for males
- - - - state statutes that req non-residents to pay a higher fee for commercial licenses
      - commuter taxes that apply to non-residents but not to residents
      - state statutes that only allow state residents to get abortions w/in the state, or
      - a state law req'ing employers to give hiring preference to state residents (except fire, police, etc)
    - - req'ing non-residents to pay higher fees for recreational licenses than residents
      - when the purpose of discrimination is to preserve natural, state-owned resources