Bar Bri Con Law Outline

I. Federal Judicial Power Courts under the Constitution

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A. Authority for Judicial Review o Article III constitution doesnt explicitly create judicial review SC articulated judicial review o 1. Marbury v. Madison (1803) creates the authority of fed court to review the constitutionality of leg and exec actions it is the province of the judicial system to say what the law is o 2. Series of decisions SC created its authority to review state and local actions and the decisions of state courts. B. Cases and Controversies o SC has interpreted this to mean if it rises to the limits of fed jud power. Justicability doctrine - must be met for any federal court at any level to hear the case 1. Standing whether the P is the proper party to bring the matter to the court for adjudications A. Injury P must allege and prove that he or she has been or will be injured. o 1. P must prove personally suffered injury. Zera Club v. Morton o 2. P seeking injunctive or declaratory relief must show a likelihood of future harm. City of LA v. Lyons (1982) B. Causation and Redressability o D caused the injury so that a favorable fed court ruling/decision might remedy the harm. o Ths is the way to be sure that the court is not issuing advisory opinions. C. No Third Party Standing o P cannot bring claims of others who are not before the court. A P must bring personally suffered injuries so that explains why we cant bring suits for others. o In order for their to be third party claims, the P himself must meets other standing requirements. o Exceptions:

1. Close Relationship adequately represent the interests of the third party. Doctor Patient 2. Third Party unlikely to be able to assert his/her own rights.

D. No Generalized Grievances. o Refers to a particular kind of claim P cannot be suing solely as a Citizen or a Taxpayer objective Objects to the govt violating the constitution.

o Exception: Taxpayers has standing to challenge government expenditure money pursuant to a federal statute in violation of the establishment clause. Narrowed: more recently, if challenging money pursuant to a specific fed statute. 2. Ripeness Asks may the federal court grant pre-enforcement review of a statute or regulation. o When P is seeking declaratory judgment, Is there really a case or controversy here? Look at two criteria: o 1. The hardship P will suffer without preenforcement review The greater the hardship the more likely the fed court will hear the case o 2. The fitness of issues in the record Does the court have all its need to decide an issue/question or would it better to wait until a real case arises? Not if it is general executive revenue.

If purely a question of law then nothing gained by waiting for prosecution.

3. Mootness if events after the filing of the law suit end the Ps injury, then the case will be dismissed because it is moot. A P must present a live controversy and a ongoing injury and if anything happens while the case is pending to end the injury, the case must be dismissed because it is moot . Exceptions: o A. Wrongs capable of repetition, but evading review. Some injuries happen over and over again and there is a short duration for the injury. If chance that happens it would happen over and over again and never be heard, the court could hear it. Roe v. Wade = Pregnant in 1970, 1973 decided. o B. Voluntary Cessation If D voluntarily haults but is free to resume at any time, the case will not be dismissed for mootness.

4. Political Questions Doctrine. Allegations of Constitutional violations that federal courts will not adjudicate Some constitutional provisions that exec and political branches to resolve. 4 cases of PQ that are non justiciable o 1. Cases under republican forum of government clause Art IV = the US shall guarantee to each state a republican form of govt

o 2. Challenges to the President conduct in foreign policy. o 3. Challenges to the impeachment and removal process of the Federal officials o 4. Challenges to partisan gerrymandering Where PP that controls the leg body that draws elections district to max benefit for that party. II. Federal Legislative Power A. Express or implied authority for congress to act o No general fed police power State and local governments have police power; can do whatever unless constitution says they cant B. Necessary and Proper Clause (Art I. Sec 8) o Congress may choose any means not prohibited by Const to reasonable curate its authority C. Taxing Spending/Commerce Clause Powers o 1. Congress may tax to raise revenue and spending program to expend it if it is for the general welfare congress can create any tax or spending program that congress believes will serve the general welfare. o 2. Commerce Clause all economic regulation, criminal laws, all regulatory statutes. Congress can regulate in 3 situations 1. Congress may regulate the channels of interstate commerce Highways, waterways, internet 2. Congress may regulate the instrumentalities of interstate commerce or persons/things in interstate commerce. Trucks, planes, boats Gibbons v. Ogden SC commerce refers to all forms of intercourse o Electricity, radio waves because they go across state lines o Stock, insurance goes across state lines o People, animals if they go across state lines. 3. Congress may regulate things that taken cumulatively have a Substantial effect on interstate commerce

Economic o Wickard Wheat has a susbtnatial effect on interstate commerce Non Economic Activityo Gonzales v. Raich criminally punish small amounts of marijuana for personal medicinal use. Marijuana is bought and sold through interstate commerce, taken in the big picture, it has a sub effect. But, In non economic effect, sub effect cannot be based on cumulative impact. o Morrison civil damages of gender motivated violence. Violence against women = sexual assault, domestic battery. Non economic activity.

o D. Tenth Amendment Any power not given to fed government are given to the state and their people respectively. Congress can act only if has the authority in the constitution. 1. Congress cannot compel state legislative or regulatory body to enforce a federal mandate NY v. United States Prince v. United States 2. Congress may restrict harmful commercial activity by state governments Reno

o E. Section 5, 14th Amendment Congress Cannot create new rights or expand the scope of rights. Congress can act to prevent or remedy rights that are recognized by the courts. Narrowly tailored - These laws must be proportionate and congruent to remedy proven constitutional violations. III. Federal Executive Power A. Foreign Policy

o 1. Treaties Agreement between foreign country and the US that is negotiated by president and effective and ratified by the senate A. state law that conflict with treaties are invalid. B. if conflict between exec treaty and fed statute the one that adopted last in time controls. C. invalid if conflict with constitution. o 2. Executive Agreements A. agreement between us and foreign country that is effective when signed by president and head of foreign nation If doc is labeled exec agree then no senate approval needed. B. may be used for any purpose. Anything that can be done by treaty can be done by executive agreement. C. executive agreement prevail over conflict state law but never over federal statutes or the constitution o 3. American Troops in Foreign Country never not once in American history has it been declared unconstitutional to do this. B. Domestic Affairs o 1. Appointment and Removal Power Who may possess the appointment power? The president appoints ambassador, federal judges, and officers of the united states. The senate must confirm the nomination but the appointment power is solely with the president Congress may defer the appointment of inferior offices in the president and the heads of department or lower federal courts. The SC has never defined who is a inferior officer One who could be fired by an officer of the United States

USAG Congress cannot give itself or its members the power to appoint executive offices. o 2. Removal Power unless removal is limited by fed statute then president may fire any executive branch official.

 Nixon firing Special Prosecutor Archibald Cox Congress may limit removal if: 1. It must be an office where independence in president is desirable 2. The statute must not prohibit removal, but can limit removal. o 3. Absolution for things during office. president cannot be sued for monetary damages for anything that happens during his presidency no immunity to things that happened prior to taking office. o 4. Executive Privilege protects Presidential Papers and Conversation IV. Federalism Limits on state and local government power A. Preemption o Art 6 Supremacy Clause Constitution and laws and treaties made pursuant to it are the supreme laws of the land. If conflict between federal and state/local law fed law wins, state law preempted o 1. Express preemption if a federal statute explicitly says that federal law is exclusive in an area, then the state/local laws preempted Any time congress has authority to act, they have the authority to say state law is preempted o 2. Implied Preemption even if federal statute is silent, still be implied preemption if federal law and state law are m. exclusive, so that it is not possible to comply with both, state law preempted If a state local law impedes the achievement of federal objective, then state/local law preempted. o 3. If congress evidence a clear intent to preempt state/local law, then state law are deemed preempted. E.g. immigation o 4. States may not regulate federal government activity McCullough v. Maryland SC declared unconstitutional a tax on the bank of the US such privilege must yield when there is an overriding interest in them.

B. Dormant Commerce Clause/Privileges and Immunities Clause Art IV. o 1. Definitions. A. Dormant Commerce Clause state/local law unconstitutional if place undue burden on interstate commerce. B. Privileges and Immunities Clause Art IV no state can deprive citizens of other state of p and I that it accords its own citizens. Anti discrimination provision limits the state/local govt to discriminate against out of staters. C. Privileges or Immunities Clause of the 14th Amendment bottom line always a wrong answer unless it involves the right to travel. Majestic language Slaughterhouse (1873) narrow construction, SC so limiting that it is ineffective. Right to Travel Saenz v. Roe (1999) - Cali law if person moved there from another state, welfare benefits limited when they moved. Discriminating against new residents v. old residents. SC = freedom of travel protected under P and I clause. o 2. Analysis Step 1: Does the state/local law discriminate against out of staters? Usually they do not discriminate but sometimes state/local government, try to get benefit for their own residents at the expense out of staters. Philadelpha v. New Jersey no out of sate garbage in NJ land fills Granholm - in state wineries could ship wine directly to consumers in the mail, but not out of staters. o 3. Analysis Step 2: Who doesnt the state/local law discriminate it against? The privileges and immunities clause of art 4 just doesnt apply if no discrimination. If law puts a burden on interstate commerce, it violates the dormant commerce clause if the burdens of interstate commerce outweigh the benefits of the law. o 4. Analysis Step 3: if law puts burden on interstate commerce unconstitutional unless it is necessary to achieve a compelling government interest necessary no less discriminatory alternative will suffice. EXCEPTIONS:

1. Congressional Approval if congress approves the state/local law it is then permissible even if violates the dormant commerce clause because it is no longer dormant, congress has acted. If congress approves permissible. 2 Market Participant Exception state/local government may prefer its own citizens in receiving benefits from government programs or dealing with governments own businesses. 1. University of Cali can charge less in tuition to in staters and more for out of staters creating a dissentive to come to the state. o Does not violate DCC because the public school is seen a s a government program. o Private schools cannot do this 2. State of South Dakota operated a cement factory charged more for to out of state. o SC since the state is the market participant it was permissible.

o Privileges and Immunities Only if discrimination against out of staters The discrimination must be in regard to civil liberties or earning ones living. SC has defined PI as including civil liberties individual rights protected by the constitution. rarely get litigated under the PI immunities clause If a law said Cali out of staters cant talk shit about governor violation of PI, but more likely to be struck down under the first amendment first. NOT REALLY USED MUCH HERE> MORE USED WHEN When a state or local government discriminate against out of staters for trying to make a living. SC wanted a fishing license $50 for in staters or $250 for out of staters NH in order to be admitted to the bar you have to be a resident of NH discriminating against out of staters ability to earn a living.

Corporations and aliens cannot use this provision. Only individuals who are US citizens may sue against Discrimination will be allowed only if necessary to achieve a compelling government interest. V. The Structure of the Constitutions Protection of Individual Liberties A. Is there government action? o 1. The constitution applies only to the government, private conduct does not have to comply with the constitution. Private Institutions Government and Constitution do not apply. State Action Doctrine constitution applies to government and government officials at all levels. o 2. Congress by statute may apply constitutional norms to private conduct. Can regulate the same standards for public conduct to private conduct. Race Discrimination apply constitutional norms of equality to private conduct pursuant 13th amendment. A. 13th Amendment Congress may prohibit private race discrimination. The 13th amendment prohibits slavery and involuntary servitude. Congress has broad power to prohibit it. B. Commerce Clause Congress can apply constitutional norms to private conduct. Civil Rights Act of 1964 SC adopted this pursuant to its commerce clause authority. Ollys BBQ Alabama Restaurant refused to serve black people. SC said that much of Ollys BBQ came across state line. Cumulatively had a significant effect on interstae commerce. C. Pursuant to section 5 of the 14th amendment can only regulate state local government, cannot regulate private behavior. Exceptions: 1. Public Functions if a private entity is performing a task that has been traditionally and exclusively done by the government. The constitution applies. o Marsh v. Alabama company town. Cant ban Jehovahs witnesses because they have to comply with the constitution.

o Jackson v. Metropolitan Edison private owned utility company that went to fire an employee. Employee wanted due process. 2. Entanglement Exception if govt authorities, encourage, or facilitates unconstitutional conduct, the constitution applies o either the govt is going to have to stop or the private conduct has to comply with the constitution. o Example: Courts cannot enforce racially restrictive covenants. There is state action when government leases premises to a restaurant who racially discriminates. No state action when govt gives a liquor license to a club that racially discriminates. No state action when private school that is 100% funded from the government fire a teacher because of her speech. Application of the Bill of Rights o The BR applies directly only to the federal government o The BR applies to state/local thorough the due process clause of the 14th amendment. Never has the SC said that they all apply to states However, over time, the SC has applied most to states only 4 that have never been applied. A. 3d amendment soldiers quartered in a persons home. B. 5th amendment grand jury indictment in criminal cases C. 7th amendment jury trial in civil cases states can eliminate juries in state court if they want. D. 8th amendment - rights of excess fines apply to state/local government.

Levels of Scrutiny whenever a court is dealing with individual liberties or civil rights

o 1. Rational basis test minimal level of scrutiny upheld if it is rationally related to a legitimate government purpose. Only has to be a reasonable or rational way to achieve the objective Tremendously deferential to the government challenger has burden of proof. GOVERNMENT ALMOST ALWAYS WINS. If challenger can show there Is no purpose or law is not rationally related to it, then struck down. o 2. Intermediate Scrutiny sub related to important govt purpose. Court will look at govts actual purpose Conceivable important purpose is not enough Means have to be narrowly tailored, substantially related. Government means have to be a very good way, not the best way, least restrictive alternative not used here. Govt has burden of proof law upheld only if govt can show sub related to an important govt purpose. o 3. Strict Scrutiny upheld necessary to achieve a compelling government purpose. > legitimate, important purpose. Govt objective must be crucial, vital, compelling Means must be necessary to achieve the purpose. Necessary = no less restrictive alternative can suffice. Means have to be narrowly tailored. Govt has burden of proof. GOVERNMENT USUALLY LOSES.

VI. Individual Liberties

A. Concepts o 1. Procedural Due Process refers to the procedures that government must follow when taking away life, liberty, or property. Requires adequate procedures = notice and hearing o 2. Substantial Due Process asks whether the government has an adequate reason to take away life, liberty or property. Requires compelling justification o 3. Equal Protection the government treatment to people is justified by an adequate purpose. Treating some differently than others. Requires all people similar situated be treated the same o Differentiate

Better procedure more notice/better hearing - procedural due process Violating rights without adequate justification substantive due process Unjustifiable discrimination equal protection

Procedural Due Process o Deprivation of life, liberty, or property? Only if there has been does govt have to provide due process Spotting a deprivation Deprivation of liberty - occurs if loss of freedom provided by const or statute The written law creates liberty interests o Usually involves a violation of a persons constitutional rights. E.g Except in an emergency in order for an adult person to civilly committed there must be notice/hearing. When a parents institutionalizes a child, only a screening by a neutral fact finder. Harm to reputation by itself is not a restriction of liberty.

Prisoners rarely have liberty interests when prisoners sue asserting a loss of liberty almost always lose. Deprivation of property - occurs if a person has an entitlement that entitlement is not fulfilled Prior to late 1960s SC drew a distinction between a right and privilege for due process analysis. Entitlement is new magic word for property analysis

Reasonable expectation to continue receipt of a benefit o E.g Employment contract renewal o What procedures are required? A. 3 pronged Test 1. The importance of interest to individual more important to individual = more procedural reqs 2. Ability of additional procedures to increase the accuracy of fact findings

the more likely that the court will require them. 3. Governments interest

usually efficiency saving money B. Examples Before welfare benefits can be terminated notice and hearing Before social security/disability can be terminated only a post-termination hearing Benefits can be cut off and then hearing provided When student disciplined by public school notice of charges and opportunity to explain. No trial type hearing required. Before parents right to custody can be permanently terminated notice and hearing. Punitive damages - instruction to the jury and judicial review. Gross excessive damages violate due process. American citizen detained as an enemy combatant must be given due process Hazer Hamdi Am Citizen apprehended in Afghanistan and detained as an enemy combatant. Had

to be given due process. Except by exigent circumstance, Pre- judgment detachment must be proceeded by notice and hearing.

Reason to believe that person will get rid of property. The government may seize property that is seized in illegal activity even if it has an innocent owner. C. Economic Liberties 1. The constitution provides only minimal protection for economic liberties. Only rational basis test is used for economic rights. Lochner Era freedom of K fundamental right used strict scrutiny after 1937 and this case, this was subsequently overruled by SC only RB used for laws effecting economic rights. Laws that require minimum wage challenge under DP or EP govt will win.

2. The Taking Clause 5th amendment govt can take private property for public use but must pay just compensation. SC provides separate mode of analysis. o Is there a taking? Possessory taking govt confiscation or physically occupies it. Regulatory taking govt regulation if it leaves no reasonable economically viable use of the property. Govt regulation is not taking simply because of the decrease in value of someones property Rules for Regulatory Takings: 1. Govt conditions on the development must be justified relative to the burden imposed. 2. Property owner may bring a takings challenge claim even when regulations were already in

place when they took ownership. 3. Temporarily denying an owner development of property is not a taking, so long as the govt action is reasonable. o Is it for public use? If not for public use, govt has to give it back. Govt defined it so every claim will meet this requirement SC has said a taking is for public use so long as govt acts out of reasonable belief that it will benefit the public. o Is just compensation paid? Measure in loss to owner the gain to taker is irrelevant.

Reasonable market value usually. The Contracts Clause Art 1 Section 10 of the Constitution No state should impair the obligation of existing Ks State/local interference with already existing contracts.

This never applies to the federal government. Can interfere future Ks Can interfere w/ existing private K if intermediate scrutiny is met. Can interfere w/existing govt K only if strict scrutiny is met. o The Right to Privacy Fundamental right protected under liberty of the due process clause Strict Scrutiny analysis Privacy = umbrella for other fundamental rights. Right to Marry heterosexual marriage Right to Procreate the govt can impose involuntary sterilization only if it meets strict scrutiny. Right to Custody govt can take away only if meets strict scrutiny Right to keep family together family includes extended family. Moore v. City of East Cleveland grandmother can live with grandchildren. In order to be considered family, individuals must be related to each other. This does not include college students that are not related. Right of parents to control upbringing of their children govt can interfere with parenting decision only if it meets strict scrutiny. Right of parent to choose to send parents child to religious school

Right of parents to have consent before court ordered grandparent visitation. Right to purchase and use contraception Griswold v. Conn fundamental right to purchase contraception. Right to Abortion Roe v. Wade (73) women have a fundamental right whether to terminate their pregnancies

Planned Parenthood v. Casey (92) SC reaffirmed Roe v. Wade. Changed law of abortion. Strict Scrutiny not used Casey Undue Burden Test o Prior to viability govt cannot prohibit abortion, can regulate so long as it does not place an undue burden on right to choose. o Viability time at which fetus can survive outside the womb. o 24 hour waiting period = not undue burden o Prohibition of partial birth abortion not undue burden Stenberg v. Carhhart parital birth isundue burden Gonzales v. Carhart partial birth abotion is not undue burden. o After viability govt may prohibit abortion except when necessary to protect their life or health. o Govt is never required to use govt funds or facilities to provide abortions. o Spousal Consent or spousal notification laws are unconstitutional o Parental Notice and/or consent for unmarried minor abortion state may require parental notice and or consent for an unmarried minor. But only if state provides the ability for a minor to go before a judge so that a judge can approve

the abortion by the judge either by seeing that its in the best interest or by concluding she is mature enough to make the decision. Right to engage in private adult consensual homosexual activity Lawrence v. Texas (2003) o Made it a crime that made same sex activity

o SC said unconstitutional a state cannot make it a crime for two consenting an adult do in their bedrooms o No standard of review for this Right to refuse medical treatment Cruzan v. Rector Hel Services o A. Competent adults have aright to refuse medical care even life saving medical care. Did not indicate level of scrutiny o B. A state may require clear and convincing

evidence before treatment is ended. State has a compelling evidence in protecting life. o C. State may intervene to prevent family members from terminating treatment to another. Prevent family members for ending treatment to end their own emotional and financial burden. Right to Physician Assisted Suicide Not a right to privacy WA v. Glucksberg (1997) o Terminally ill patient challenging aiding or abetting suicide o SC ruled against patients and said right to privacy does not include physician assisted suicide.

o E. 2nd Amendment DC v. Heller (2008) Private ownership possession of handguns Right of people to have guns for sake of security, not only a right to have guns for militia services. McDonald v. City of Chicago Rule applies to state/local govt Do not know what level of scrutiny. 2nd amendment does protect individual right to have guns firearms in the home for sake of security.

o F. The Right to Travel under EP clause of 14th amendment and PI of 14th amendment 1. Laws that prevent people from entering or leaving a state must meet strict scrutiny 2. Duration residential requirements must meet strict scrutiny. Person must live there a specified amount of time to get a specific residence. 3. Only a rational basis test used for restriction on foreign/international travel. o G. Right to Vote 15th amendment, Fundamental right under EP 1. Must meet strict scrutiny. 2. As to regulations designed to prevent fraud, allowed as long as on balanced desirable photo id not unconstitutional 3. One person, one vote must always be maintained. All district should be equal in population 4. At large elections are allowed, unless presence of discriminatory purpose. All voters vote for all officeholders

o H. Right to Education not a fundamental right under constitution Rodriguez v. San Antonio Board of Ed Funding public schools largely through property taxes, wealthy areas could tax lower rates, much more to spend on education, poor schools could tax higher rates, much less to spend on education. SC upheld. No fundamental right to education. VII. Individual Protection Whenever Govt draws distinctions among people potential for EQ claim A. Equal protection. o 1. What is the classification? How is the govt drawing a distinction among people? What is the level of scrutiny? Does the government action meet the level of scrutiny? B. Constitutional provisions relating to equal protection o STATE/LOCAL = 14th o FEDERAL = 5th

o Equal protection clause of 14th amendment applies only to state/local governments. o 14th Amendment never applies to the federal government EP is applied to federal govt through the due process clause of the 5th amendment. o Law of EP is the same whatever the level of government. C. Strict Scrutiny o Govt discriminates against people when race/national original where they or there ancestors came from How is the existence of a race/NO classification proven? Facially Discriminatory law in very terms draws distinctions based on race Only whites can serve on juries Brown v. Board - Separate but equal schools Facially Race Neutral Application 1) discriminatory effect and 2) intent Washington v. Davis o Requirement that police officers had to take a test. Blacks failed more than whites. SC upheld

and said proof of impact is not enough to show a racial classification. Also prove the intent was to discriminate on the basis of race. How should benefiting be treated? Affirmative Action Strict Scrutiny standard Clearly est. strict scrutiny is test when govt classifies based on race either invidious or benefitting minorities Numerical set asides require clear proof of past discrimination Croson v. Richmond o Minority owned businesses

United States v. Paradise Educational institutions may use race as one factor in admissions decisions to benefit minorities. Gruter v. Bolinger (2003)

o SC said college and universities have a compelling interest in having a diverse student body. Public school systems may not use race to assign students to achieve desegregation unless strict scrutiny is met.

Louisville KY, Seattle WA unconstitutional govt cannot use race unless it meets strict scrutiny. o Gender Classifications Intermediate scrutiny Added something onto the usual inter scrutiny Only if it can show an exceedingly persuasive justification How is a gender classification proven? Facially invidious exists on the face of the law OK - women could buy 3.2 beer at age of 18, but men not until 21. Unconstitutional

VA only men could attend the VMI. No exceedingly persuasive justification. Facially gender neutral discriminatory effect and intent

Firefighters have to 510 and 150 what level of scrutiny? Only rational basis review. How should gender classifications benefitting women be treated? Intermediate scrutiny either way. Gender classifications based on role stereotypes will not be allowed. Some laws to benefit women, in reality perpetuate destructive stereotypes o E.g No Alimony or survivor benefits for men.

Gender classifications benefiting designed to remedy past discrimination or differences in opportunities will be allowed.

Wage discrimination Length of time for promotions in Navy o Alienage Classifications laws that discriminate against non US citizens Strict scrutiny is generally used Exceptions:

Only a RB test used related to self govt and the democratic process RB when congress discriminates

Congress has plenary power to discriminate Intermediate Scrutiny is applied for discrimination against undocumented alien children o Rational Basis Standard 1. Age discrimination 2. Health/Physical Disability 3. Wealth Discrimination not a suspect class 4. Economic regulations

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