Constitutional Law

Constitutional law is a body of law dealing with the distribution, exercise and limitation of government power. There are two main MBE and exam essay issues:

1) Standing and 1st amendment.

2) 14th Amendment.

  1. State action.
  2. Equal protection.
  3. Due process.

The approach to answering essay and MBE questions.

1) Underline who’s passing the law. Is it the federal government, congress, a state, city or municipality?

2) Determine the subject matter of the question.

Example A: Federal appropriation to grant states highway funding.

Example B: Restrictions placed on the right to marry.

Example C: Wild animals on federal land.

3)    Match the appropriate power of regulation to the subject matter.

Example A: What power would federal appropriation for highway funding (the subject matter) arise under? Congressional power to tax and spend.

Example B: Marriage is a fundamental right requiring strict scrutiny analyzed under the equal protection clause.

Example C: Article 4 § 3 federal property power.

  1. I. Federal judicial authority Organization and relationship of the state and federal court system.

Constitutional basis.

  1. Article III of the constitution. Judicial power vests in the SC and inferior courts that congress may establish.

SC is the only court required by the constitution with jurisdiction limited to cases and controversies. Cases and controversies are must have an actual and definite dispute between parties, which have adverse legal interests.

SC has no advisory opinions. Washington. (State courts may give advisory opinion).

Article III judges have lifetime tenure and salary protection.

All decisions rendered by Article III courts are reviewable by the other federal courts.

MBE: Congress has no power to divide the SC into separate panels. There must be only one SC.

  1. Congress has plenary/exclusive power to establish lower federal courts.

Congress may not limit federal question jurisdiction as a basis of subject matter jurisdiction because it is federally mandated. However, congress may confer (give), remove or limit jurisdiction of federal district courts and courts of appeal.

All cases that arise under the constitution, laws and treaties of the U.S. are federal question jurisdiction required under the constitution.

MBE: Congress may bar any and all actions in federal courts based on diversity of citizenship, because diversity jurisdiction is not constitutionally mandated and congress has exclusive power to confer, remove or limit the lower federal courts.

  1. Supreme court jurisdiction.
    1. Original jurisdiction. Applies to cases involving ambassadors, public ministers, consul or where a state is a party.

Congress may not enlarge or restrict original jurisdiction of the SC.

SC has jurisdiction in any case where a state is a party.

  1. Appellate jurisdiction. Congress may broadly regulate.

MBE: Any lower state court decision upholding energy laws may be directly appealed to the SC because congress may broadly regulate the appellate jurisdiction of the SC.

Caveat. Congress may not preclude/prevent review of an entire class of cases.

MBE: If congress were to pass a law that said, no lower state court decisions regarding school prayer could be brought before the SC, this would be unconstitutional as congress would be precluding review of an entire class of cases and that would violate principles of federalism.

  1. Supreme court appellate review. 28 U.S.C. § 1257. Congressional enacted two statutes that give the SC appellate jurisdiction.
    1. Appeal. Mandatory review as a matter of right.

What cases are mandatory? Decisions made by three judge federal district court cases. Generally, cases that involve injunctive relief. (Something that must be heard quickly.) Almost all other cases are subject to certiorari.

  1. Certiorari. Discretionary review where four or more justices vote to hear a case. Known as the rule of four, a SC practice that permits four of nine justices to grant a writ of certiorari. This is done to prevent a majority of the court from controlling all the cases it agrees to hear.

What types of cases are heard under certiorari?

  1. Highest state court cases regarding federal violations.
  2. All cases from the U.S. courts of appeal.
  3. Concurrent jurisdiction. Lower federal courts have the power to hear most types of cases the SC may hear.

Exception: SC has original and exclusive jurisdiction in any case between two or more states.

Judicial review. Federal courts may refuse to hear cases or refuse to invalidate state or federal legislation based on:

  1. Adequate and Independent state grounds (Applies only to SC.)

A doctrine limiting the power of the SC to review judgments entered by state courts. Cases must have a final judgment from the highest state court. The SC does not have jurisdiction over the case if the state ground is:

  1. Adequate state ground to support the judgment and;
  2. Independent of federal law.

Michigan v. Long. State courts must make it clear that state grounds are independent of the federal constitution.

MBE: State court held a state law unconstitutional because it violates both the states and federal constitutions, but doesn’t say why. Here, the SC will presume that the state court found the federal law controlling, as a result there is no independent state ground and the SC will hear the case.

  1. Standing. A gatekeeper doctrine that may serve as a bar to a claim in federal court. The key factor is whether the plaintiff is the proper person to assert that claim. The plaintiff must show a concrete personal stake in the outcome. To establish a concrete personal stake the plaintiff must satisfy the constitutional standard, imposed by the case or controversy requirement under Article III, § 2 or the doctrine of prudential limitation. Plaintiff must have suffered or will suffer an imminent injury of a legally protected interest.

Caveat. If the plaintiff is in federal court, first discuss whether or not they have standing to bring suit in a federal court. P must have a personal stake in the outcome and satisfy the constitutional standard.

  1. Constitutional standard.
    1. Injury In fact. The injury must be economic.

Exception: Sierra Club v. Morton. The injury may be aesthetic or environmental but must arise from the governmental conduct in the complaint.

  1. Causation. There must be a causal connection between the injury and the conduct complained of.
  2. Redressability. The relief sought must eliminate the harm alleged Worth v. Seldon. Low-income minority plaintiffs brought action claiming a zoning ordinance was racially discriminatory because it denied them affordable housing. The SC held the plaintiffs had no standing because even if the zoning ordinance was overturned, the housing in question would still not be affordable. Therefore the relief sought would not eliminate the harm alleged.
  3. Prudential limitation. Limits imposed by the SC itself to not hear a case, even where the constitutional standard has been satisfied.
    1. Third-party standing. Plaintiffs must advance their own rights.

Exception. Where a plaintiff can show:

  1. A close nexus/relationship between the plaintiff and the third-parties rights.
  2. A special need to adjudicate.

Craig v. Bourne. A mid-tier scrutiny case based on gender discrimination. A bartender brought action challenging a state law that permitted women to drink alcohol at 18, but males had to be 21 to enjoy the same privilege. The bartender was raising the rights of the minor males who couldn’t adequately protect their own interest. Also bartenders throughout the state were losing a lot of potential revenue. So there was a financial need to adjudicate. The SC held there was a close relationship between the plaintiff and the third parties. The injury suffered by the plaintiff adversely affected his relationship with the third party. A close relationship and a special need to adjudicate existed. Therefore third party standing was conferred.

  1. Doctors may raise rights of abortion patients.
  2. Schools may protect rights of minor students.
  3. Labor unions may challenge layoffs of its workers.
  4. No abstract or generalized grievances. A plaintiff cannot sue if the injury is widely shared by many people. Private citizen standing is generally denied.

Example: A federal statute required the director of the CIA to issue an accounting of all public funds used by the CIA. The CIA director failed to issue the accounting. A private citizen brought suit challenging the lack of action by the CIA director. The SC held as a private citizen there was no standing because the plaintiff had not alleged any mismanagement, he suffered no injury and that there was no harm alleged. Based on that standing was denied.

Example: There is no federal taxpayer standing, as complaints about the spending of federal funds are too remote from the process of acquiring them.

MBE: An organization dedicated to keep government agencies within their powers brought suit. If there is no personal injury in fact, there is no standing.

State taxpayer standing. There must be a showing of financial harm. State taxpayers have standing to challenge measurable expenditures if there is financial harm.

Example: State taxpayer challenged the use of state funds to pay for bussing students to parochial schools.

Example: Taxpayer challenging bible reading in public schools would not have standing, because there would be no financial expenditure.

Federal taxpayers don’t have standing because their interest is too remote.

Exception: Flast v. Cohen. A federal taxpayer has standing to make an establishment clause challenge to an expenditures/costs enacted under congressional taxing and spending powers.

MBE: Congress authorized a gift of federal property in the form of a military cargo airplane. The secretary of interior could award it to any deserving group. An aviation group called the Future Fliers of America wanted the plane and a religious group undertaking an international crusade for world peace wanted it to fly around the world and spread their religious teachings. The plane was given to the religious group. Who has standing to challenge the action? A. State taxpayer. B. Federal taxpayer. C. The FFOA. Look at under what power the aircraft was awarded. This was a gift of federal property power not a taxing and spending power that applied to Flast. Therefore, only the FFOA had standing on grounds of separation of church and state, not under expenditures. Flast is a narrow holding applying only to expenditures.

  1. Zone of interest test.
    1. Zone of Injury. The injury is the kind of injury that Congress expected might be addressed under the statute.
    2. Zone of Interests. The party is within the zone of interest protected by the statute or constitutional provision.
    3. Ripeness. A non-ripe case is a case brought too early. For a case to be ripe there must be a genuine immediate threat of harm. Courts dismiss such cases arguing that future events would define the issue. This should be balanced against the plaintiff’s argument that they will suffer immediate harm is they are denied review.

MBE: Challenge was brought to invalidate a law that prevented the use of contraceptives. The problem with this law is that it had not been enforced for more than 30 years. There court held the case was non-justiciable and unripe because there was no immediate threat of harm because the law had not been enforced.

  1. Mootness. A case brought too late. A case is moot unless an actual controversy exists at all stages of review.

DeFunis v. Odegaard. A non-minority student applicant claimed an equal protection violation in a law school’s admissions policy. By the time the case was heard, the plaintiff was already a third year law student. The case was dismissed as moot because there was no live controversy.

Exception: Where the injury is capable of repetition yet evading review.

Roe v. Wade. A woman plaintiff was pregnant at the time the case was brought to challenge and anti-abortion law, but she was no longer pregnant when it came time for the case to be heard. The SC held that the plaintiff represented other members of a class and could still challenge the constitutionality of the state abortion law or some other member of her class.

  1. Political question doctrine. A non-judiciable issue committed to either the legislative or executive branches of government that the federal courts decline to hear. The doctrine has its roots in the federal judiciary’s desire to avoid inserting itself into conflicts between branches of the federal government. It’s justified by the notion that there exist some questions best resolved through the political process, such as voters approving or correcting a challenged action. Critics of the doctrine argue it has little or no basis in the text of the constitution and is used by courts to shirk responsibility for deciding difficult questions.

Political questions are matters the court declines to hear because:

  1. The constitution has committed decision-making on the subject to another branch of the federal government.
  2. There are inadequate standards for the court to apply.
  3. The court feels it is prudent not to interfere.

Justiciability is the limits upon legal issues over which a court can exercise its judicial authority. It includes standing, which is used to determine if the party bringing a suit is the appropriate party in establishing whether an actual adversarial issue exists. Essentially, justiciability seeks to address whether a court possesses the ability to provide adequate resolution of a dispute. Where a court feels it cannot offer a final determination the matter is not justiciable.

Areas that fall under the political question doctrine.

  1. Article IV guarantee clause. Every state is guaranteed a republican form of government. The court won’t here matters regarding the guarantee clause. A guarantee clause could be a political question.

Exception: Baker v. Carr. The state argued district apportionment was a guarantee clause issue and thus non-justiciable. Therefore, the SC could not hear it because it was up to the states to determine the apportionment of its legislative districts. The SC disagreed holding the SC may direct/compel a state how to reapportion its legislative districts.

  1. Amendment ratification. Courts cannot determine the amount of time that a state must ratify a constitutional amendment. That power is reserved to congress and therefore a political question.
  2. Age, residency and citizenship requirements of members of congress.

Powel v. McCormick. Congressional nominee was elected into a seat and traveled to Washington, spending a few months working as a congresswoman. Congress said she didn’t satisfy residency requirements and refused her seat and back pay. She brought suit for reinstatement and her back pay. Could the court hear this case? The SC could hear the issue of back pay, but the issue of reinstatement was an age, residency and citizenship requirement that fell under the powers reserved to Congress not to the courts. This is a non-justiciable political question.

  1. Foreign Affairs. The courts will not hear matters regarding foreign affairs because it is an area controlled by congress or the president.

Example: Congress passed a law that banned trade with a hostile nation. A citizen who is a private contractor is economically harmed and brought action to have the SC invalidate the law. He has standing as he will suffer great economic loss and if the ban were overturned it would eliminate his grievance so he can show causation. Will the court hear his case? No, because matters of foreign affairs are reserved to congress and the president and therefore the federal courts will not overturn a congressional authorization in the area of foreign affairs.

MBE: Look for foreign affairs on the exam for a correct answer regarding political questions.

  1. 11th Amendment. A state is immune from suits in federal court by its own citizens, citizens of other states or foreign countries without consent. This does not bar suits against municipalities, cities, counties, local school boards or other local agencies in federal court. It doesn’t bar a state from suing another state or the federal government from suing a state.

Exception. State officials can be sued for damages or injunctive relief when federal laws are violated.

Seminole Indian Tribe v. Florida. A federal law passed by congress to regulate gambling activities of Indian tribes, in the law the tribe was provided a right to sue the state in federal court if the tribe felt the state was not acting in good faith. The SC held the law was unconstitutional, because the 11th amendment restricts judicial power under Article III and congress’ power to regulate commerce under Article I, could not be used to circumvent constitutional limitations of the federal government embodied by the 11th amendment.

Kimmel v. Florida Board of Regents. The Age Discrimination in Employment Act of 1967 made it unlawful for a private employer to discriminate against an individual because of their age. Congress extended the Acts substantive requirements to the states. State workers alleged age discrimination and sued their employers in state court. Does the Act abrogate state’s 11th amendment immunity from suits in federal court? No, the Court held that the Act clearly showed that congress intended to abrogate the states immunity and exceeded congress’ authority under the 14th amendment. States may discriminate on the basis of age without offending the 14th amendment if the age classification is rationally related to a legitimate state interest. Justice O’Connor noted that, Old age does not define a discrete minority because all persons, if they live out their normal life spans, will experience it. When a state discriminates on the basis of race or gender, the SC requires a closer nexus between the discriminatory means and the legitimate ends they serve. Here, congress lacked the power to override the state’s 11th amendment immunity powers.

  1. Abstention.

Poleman abstention. Federal courts will temporarily abstain where there is an unsettled issue of state law. The state court interpretation of its statute might render federal court review unnecessary. Procedurally the federal court retains jurisdiction if a federal claim exists after the state court has rendered their decision.

Younger abstention. Broader than Poleman abstention. Federal court review is prohibited in:

  1. Pending state criminal proceedings.
  2. Criminally related civil proceedings.

Example: Welfare fraud or garnishment of wages.

  1. Civil contempt proceedings.

Younger prohibits a plaintiff from going to federal court for declaratory relief as a civil plaintiff. If the plaintiff is threatened with criminal prosecution and he doesn’t think it is fair and they seek declaratory relief in a civil action in a federal court, procedurally under Younger the plaintiff must go back to the state court as a criminal defendant for all purposes even federal constitutional claims.

Distinction between adequate state grounds and abstention is in timing. Abstention doctrine applies to pending proceedings, unsettled issues of state law. Adequate state grounds apply after there has been a final judgment from the highest state court that a case may reach. Abstention applies to the entire federal judiciary, where adequate state grounds only apply to the U.S. Supreme Court.

  1. II. Separation of powers
    1. The legislative powers of congress.
      1. Enumerated powers doctrine. The federal government only has authority the constitution confers upon it. Powers not delegated to the federal government are retained by the states through the 10th amendment.
      2. 10th amendment. Police powers are one of two strong sources to uphold state powers use of legislation. Police powers protect any health, safety, welfare, morals or aesthetics interest of a state.

MBE: If a state is attempting to pass a law, look to see if there is sometime of police power being furthered, if there is go to one of the two questions that say constitutional and look for a police power answer. Examiners typically do not use the word police powers, but in its place look for rational basis language. A good answer choice would say, constitutional because it is a reasonable regulation, or constitutional because it furthers a legitimate interest.

  1. Article 1 § 8. Is a list of enumerated powers of congress that include commerce, taxing and spending, war powers, postal powers, copyright, patent, bankruptcy, power to coin money, immigration and naturalization, powers to legislate for District of Columbia, etc. These powers are magnified by the necessary and proper clause.
  2. Necessary and proper clause carries into execution other enumerated powers of congress. It does not stand as an independent source of power.

MBE: When standing alone the necessary and proper clause is generally the wrong answer.

Enumerated powers of congress.

  1. Commerce power. A plenary power that applies to regulating both foreign and domestic commerce. Congress can regulate both persons and things traveling from state to state.

MBE: Congress appropriated 20 million dollars to launch a satellite disk in space to communicate with alien beings that might be out there. What power would this fall under to be clearly constitutional? Commerce power.

Commerce doctrines.

  1. Affectation doctrine. Under the necessary and proper clause, congress can regulate local activities if it can conclude that such activities have a substantial effect on interstate commerce.

Jones v. Laughlin Steel. Congress may regulate any activity that has a substantial economic affect on the stream of international commerce. Congress can regulate for clearly non-commercial, social welfare measures, health regulation and legislate in areas of civil rights by appropriate legislation known as the enabling clause, which is attached to the 13th, 14th and 15th amendment.

Congress passed the Civil Rights Act of 1964 outlawing segregation in schools and public places. Title II of the act was written to grant African-Americans full access to public facilities such as hotels, restaurants and public recreation areas. On the same day, the SC heard challenges to Title II from a motel and restaurant owner. Both claimed the federal government had no right to impose any regulations on small, private businesses. Both ultimately lost.

Heart of Atlanta Motel v. U.S. Congress can regulate discrimination of hotel guests because such discrimination places a burden on interstate travelers.

Katzenbach v. McClung. Ollie’s Barbecue was a small, family-owned restaurant that operated in Birmingham, Alabama and seated 220 customers. It was located on a state highway, only eleven blocks from an interstate highway. In a typical year, approximately half of the food it purchased from a local supplier originated out-of-state. It catered to local white families and provided take-out service to African American customers. Because some food that was served in Ollie’s Barbecue originated out of state, the SC held that congress had the power, under the commerce clause to ban racial segregation in the restaurant.

Limits on affectation doctrine.

U.S. v. Lopez Congress attempted to make it a federal crime to knowingly possess a firearm in a school zone by passing the Gun Free School Zone Act of 1990. Lopez moved to dismiss the case claiming the act was an unconstitutional congressional attempt to control public school activities. The motion was denied as the act was determined a constitutional exercise of congress’ power to regulate activities in and affecting interstate commerce and the business of schools. The government’s argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition because violent crimes cause damage and create expenses, raises insurance costs spread through the economy; and places limits on travel in areas perceived to be unsafe. The government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students being scared and disturbed. This would inhibit learning and lead to a weaker national economy since education is an important element of the nation’s economic health. The court held that while congress had broad lawmaking authority under the commerce clause, the power was limited and did not extend so far as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale. The court found these arguments to create a dangerous slippery slope. What would prevent the federal government from regulating any activity that might lead to a violent crime, regardless of its connection to interstate commerce, because it imposed social costs? What would prevent congress from regulating any activity that might bear on a person’s economic productivity? Congress went beyond its commerce power where the link between gun possession and interstate commerce was too weak to qualify as a substantial affect. If it were allowed, there would be no limit to congress’ commerce power and end up being a police power. There must be a nexus to provide a commerce link and it didn’t exist under the facts presented. To fall within the scope of proper commerce clause activity regulation it must substantially affect interstate commerce. Chief Rehnquist identified three areas of activity that congress could regulate under the commerce clause:

  1. Channels of interstate commerce.
  2. The instrumentalities of interstate commerce or persons or things in interstate commerce and
  3. Activities must substantially affect interstate commerce.
  4. Cumulative impact doctrine. Entirely intrastate activities have a cumulative impact on interstate commerce.

Wicker v. Filburn. A farmer grew wheat for his personal use only. None of it left the state. The SC held that an entirely intrastate activity has a cumulative impact on interstate commerce.

  1. 10th amendment Powers that are not delegated to the federal government are reserved to the states. The 10th amendment is not a strong limitation on the federal commerce power. It is a weak limitation.
    1. The 10th amendment as a weak limitation on federal commerce power.

Garcia. A federal statute that established minimum wage that applied to all businesses with no exemptions for employees of a state owned mass transit system. The state argued in its defense the 10th amendment precluded congress from passing such a law. The SC held the statute was constitutional under the commerce power and the 10th amendment would not invalidate it.

  1. 10th amendment as a strong source of power.

New York v. U.S. Congress passed a federal law telling the state of New York to pass legislation to arrange for the disposal of toxic waste generated within its border or else take title to it and be liable for damages. The SC held the 10th amendment serves as a limitation to prevent congress from interfering in certain ways regarding the states lawmaking processes. Congress may not commandeer the state’s to enact or enforce a federal regulatory program.

  1. Taxing and spending power. Congress may tax and spend for the general welfare of the public. Just as the necessary and proper clause, the general welfare is not an independent source of power. What the general welfare clause does it limit the taxing and spending powers of congress. A federal tax is valid if the dominant intent is fiscal or to raise revenue.

Under spending power congress can attach strings to granting money.

Oklahoma v. U.S. Civil Service Commission Congress would not grant federal highway funds to Oklahoma unless the state highway commissioner resigned. The grant was conditioned upon the resignation of the highway commissioner. Is it constitutional for congress to attaché strings to grants of money? Yes, congress may regulate indirectly where it cannot legislate directly.

MBE: Most federal appropriation is derived from the spending power. Examiners are testing on the taxing and spending powers generally when they use the word appropriation.

  1. Delegation of legislation power is permissible. Congress may delegate its legislative power to executive agencies, cabinet members, executive officers, even to the judiciary. However, the SC held in INS v. Chada, that congress may not delegate legislative authority to another branch of government and then subsequently retract it using a legislative veto.

MBE: Congress passed a law that authorized the secretary of commerce, a member of the executive branch to prohibit the import of certain goods between the U.S. and Japan. The purpose was to remedy enormous trade imbalances between the countries. Under the same federal law there’s was a provision for congress to override the decision of the secretary by a two-third vote of both houses. The authorization of the secretary to prohibit goods was permissible. However, the provision to override the secretary was impermissible as it was a legislative veto.

If congress is passing legislation what are the strongest powers to uphold it?

  1. The supremacy clause.
  2. Any Article 1 § 8 enumerated powers of congress.

Example: Commerce powers, spending powers or war powers.

  1. Federal property power.

If a state is passing legislation what are the strongest powers to uphold it?

  1. Police powers: Health, safety, welfare, morals and aesthetics.
  2. Dormant commerce clause.
  1. Federal executive powers. The powers of the president.

Domestic policy.

  1. The president has the power and the obligation to faithfully execute the law.

MBE: Where congress appropriates a certain dollar amount to be spent for some purpose, the president must faithfully execute that law and not diminish, cut back or refuse to allocate any amount of that money.

MBE: To reduce the enormous federal deficit the president placed an executive order that put a 70% ceiling on all spending by executive officers as authorized under the current fiscal budget. Is the executive order constitutional? No, because the president has no power to limit currently enacted federal spending measures. The president may limit future spending if there is no current future spending bill enacted.

  1. Appointment power. The president can appoint:
    1. Executive officers, cabinet members, ambassadors and SC justices with senate confirmation, advice and consent.
    2. Officers of the U.S.
    3. Persons who are members of agencies or commissions that have administrative powers.

MBE: Federal clean air and water act establishes a committee of five members. The purpose of the act is to draft and enforce regulation. (Administrative functions.) The committee members are officers of the U.S. and this means that the president must appoint all five committee members.

MBE: Federal election committee has administrative functions with seven members appointed by congress, the courts and the president. Is this Constitutional? No, the president must appoint all members because they have administrative functions.

  1. Removal. The president may remove executive branch officials. He may not remove federal judges or fixed term officials, unless there is a showing of good cause. Congress cannot appoint inferior officers, (special prosecutors) but it can delegate appointment of such officers to the judiciary, executive cabinet members, such as the attorney general or to the president. Congress has no power to summarily remove.
  2. Legislative power. The president has no legislative powers. However, he may veto congressional legislation if he does so within 10 days. Checks and balances: The president’s veto may be overridden by a two-thirds vote of each house.
  3. Pardon power. The president has Article II pardon powers that extend to offenses against the U.S. It applies to federal not state crimes.

MBE: President granted a pardon to terrorists who were charged with kidnapping in a state court. The governor of the state refused to honor the presidential pardon. What is the governor’s strongest ground for refusal? The pardon power only applies to offenses against the U.S. It doesn’t apply to state crimes.

  1. Executive privilege. The president has an absolute privilege to refuse to disclose military and diplomatic secrets, papers and conversations. Otherwise this privilege is merely a qualified privilege that must yield to important government interests.
  2. Civil suits. The president has an absolute privilege against civil suits for money damages while in office.
  3. The president is commander and chief of armed forces. The president may deploy military forces in occupied territories even before war is declared. The president has broad emergency powers. Checks and balances: Congress has the power to declare war and to raise and support the armed forces.

MBE: The president ordered that state National Guard into active federal service. Does the president have authority to do so? Yes, this is constitutional because the federal government has full authority over state militia.

  1. Implied power. The president may declare an end to war.

Foreign policy. Both congress and the president share power.

MBE: The president power in foreign affairs is plenary? No, the president does not have exclusive power over foreign affairs this power is shared by congress.

  1. As commander and chief the president may conduct foreign affairs.
  2. The president has treaty power to conduct foreign affairs.
  3. Congressional authorization. Congress may delegate portions of commerce power to the president regarding foreign affairs.

Hierarchy of law.

  1. The constitution.
  2. Treaties and acts of congress. If a conflict exists, the last passed in time prevails. Senate consent is required.
  3. Executive agreement and executive orders.

Executive agreement Informal means by which the president may conduct day-to-day economic and business transactions with foreign countries. Senate consent is not required.

Executive order. Deals with domestic policy.

  1. State laws.

Inter-branch checks and balances.

  1. Veto powers. The president has veto power of legislation passed by congress. Two-thirds of both houses may override the veto.
  2. War powers. President is commander and chief. Congress has the power to declare war and to raise and support an army.
  3. Impeachment power. Congress may remove the president through treason, bribery or other high crimes and misdemeanors. The house has the sole power to impeach. The senate has the sole power to try the impeachment.
  4. Investigatory power. Congress has broad investigatory power over any matter within its jurisdiction. It can enforce through sanctions such as contempt.
  5. Speech and debate clause. Provides absolute immunity to members of congress and their aids regarding any matters conducted on the floor of either house. Does not apply to defamatory newsletters or press release, which may be issued by a member of congress.

III. Federal government limits on state authority

  1. Intergovernmental Immunities
    1. State regulation of federal government.

Taxation. Federal government and its agencies are immune from state taxation and regulation. However, states may tax federal contractors as long as the obligation to pay does not fall on the federal government.

Example: California wants to tax a federal worker at Yosemite National Park. The worker has a federal license to run a concession stand in the park. Are they immune from state taxes? No.

  1. Federal property power. Article IV § 3. Congress has the power to dispose of and make all necessary rules and regulations respecting territories or other properties of the U.S. within state borders. This property power applies to:
    1. Wild animals.
    2. Military ships and airplanes.
    3. Indian reservations.
    4. Federal buildings and federal enclaves. (Enclaves are a group of buildings such as a military base, military hospital or FBI buildings.)
  2. Federal government regulation of the states
    1. 10th and 11th amendments do not immune states from federal regulation.
    2. The federal government may sue a state without its consent.
    3. A state can sue another state.
    4. The federal government may tax proprietary state owned businesses. A proprietary business is a business that can be carried on by a private citizen for profit.

Example: Saratoga water bottling company is owned by the state of New York. Can the federal government tax it? Yes, because it’s a proprietary business run for profit.

  1. Governmental functions and activities unique to a state cannot be taxed.

Example: State government buildings, state run schools and public parks.

  1. Dormant Commerce Clause. Powers reserved to the states.

Also known as the negative implications doctrine is commerce powers reserved to the state. Congress has plenary power to regulate commerce. However, where congress has not passed legislation, where it is silent, states are free to regulate if the regulation is nondiscriminatory and not unduly burdensome on interstate commerce. State regulation is valid if it meets two requirements.

  1. Non-discriminatory. States must not discriminate against interstate commerce in favor of its own local interests. A state law that intends to further a legitimate state interest that produces a discriminatory impact on an out of state market participant must be written in the least restrictive, lease burdensome means available.

City of Philadelphia v. New Jersey. N.J. forbade out of state garbage collectors from importing waste into the city of Camden, which the city held as a precious state resource. This new law put Pennsylvania garbage collectors at a disadvantage. The law intended to further a legitimate objective but was producing a discriminatory affect. The SC held the state could not discriminate against out of state rubbish in favor of local trash. Prohibiting the trash was not the least restrictive means available. N.J. could tax the out of state garbage, require a license to dump it and/or move the dumps further away from the cities. The law was therefore struck down as having a discriminatory affect.

Hunt v. Washington State Apple Commission A N.C. law required all apples sold in the state to bare a label with a grade no higher than the U.S. grade. Washington state apple growers had a grade much higher than the U.S. grade and felt the law was depriving Washington growers a competitive advantage and as a result the law had a discriminatory affect on their apples. The SC held the N.C. law unconstitutional as a violation of the commerce clause.

Exception: Market participant doctrine. Where a state is a market participant and may discriminate without violating the dormant commerce clause. A state may act as a market participant, but not as a market regulator. Purposeful discrimination in a state law clearly violates the dormant commerce clause.

Reeves v. Stake. The state used state taxpayer funds to build a cement plant and gave hiring preference and subsidies to local residents in favor of out-of-state persons. The affect was discriminatory, but the state was using its own money to create the market. The SC held this was permissible and did not violate the commerce clause because the state used its own money as a market participant to create the market. Where a state uses its own money to create the market then it may favor local interests and give hiring preference and local subsidies.

  1. No undue burden. States may not unduly burden interstate commerce.

Balancing Test. The court balances the state interest in regulation against the burden on interstate commerce.

South Carolina v. Barnwell S.C. imposed width restrictions on trucks based on safety under police powers because its roads were narrow. The burden of interstate commerce was that many interstate trucks that used highways in S.C. The state interest was their police powers safety interest because S.C. had narrow roads. The burden on interstate commerce was that many trucks could not travel on S.C. roads. The balancing test was used and the S.C. law based on safety interest was upheld to outweigh the burden on interstate commerce and the law was upheld.

Bib v. Navaho Freight Lines. Illinois required all trucks driving on state highways to be equipped with rounded mudguards, instead of flat mudguards. The state interest was that the rounded mudguards threw up less debris from the road. This meant that truckers were going to have to change mudguards just to drive from Indiana into Illinois to do business. The Court held the safety benefit was marginal and here the burden on interstate commerce was too discriminatory.

Article IV privileges and immunity clause. Is a doctrine related to the dormant commerce clause. Also known as the commodity clause. This clause prevents one state from discriminating against citizens of another state regarding basic economic rights and activities.

Tumor v. Whitsle. S.C. required a 25.00 license fee for any resident who wanted to obtain a commercial shrimp fishing license. Out of state residents, such as Georgia and North Carolina were required to pay 2500.00 for the same license. This was one state discriminating against residents of other states regarding economic activities. The SC held that excessive commercial fees are unreasonable and violated the article IV privileges and immunities clause.

Baldwin v. Montana Fish and Game. Montana charged residents 9.00 for a recreational hunting license, out of state residents had to pay 225.00 for the same recreational license. The licensing fee had a discriminatory affect on out-of-state citizens that wished to obtain the license. The Court held this was a recreational interest as opposed to a commercial interest and as a result did not violate article IV privileges and immunities clause.

Piper v. New Hampshire. Piper lived in Vermont across the river from N.H. and wanted to take the N.H. bar exam. N.H. had a six-month residency requirement before allowing her to take the bar exam. The SC held the N.H. law discriminated against citizens/residents regarding a basic economic right or liberty (right to take a bar exam) and violated the article IV privileges and immunities clause.

MBE: if article IV is going to be a correct answer choice, look for key words discriminating against citizens or residents. Most of the time, if it’s an economic discrimination issue, it’s generally a commerce clause issue. Most article IV choices are incorrect answers because economic discrimination is generally a commerce clause issue, but if it mentions citizen or resident, think about the article IV clause. Caveat: Corporations and aliens are not considered citizens.

  1. State taxation of interstate commerce. A state tax is valid if;
    1. The tax is reasonable and non-discriminatory. This prong is to satisfy the commerce clause.
    2. There must be a substantial nexus (minimal contact) between the state interest and the activity being taxed.

Goods in the steam of interstate commerce may not be taxed. The purpose is to prevent multiple state tax burdens that would put interstate commerce at a competitive disadvantage. Goods may be taxed at the beginning and end of transit and if there is a break or stop in transit.

Example: Shipping a trainload of sofas from Boston to L.A. Boston may tax because it is at the beginning of transit. California may tax it because L.A. is at the end of transit. However, the train stops at Chicago and some sofas are taken out. Here, there would be a break in transit therefore Illinois may tax the goods as well.

Instrumentality taxation. Applies to trucks, trains, planes, ships, etc. may be taxed provided the tax is fairly apportioned to taxpayer use. The taxpayer must acquire a taxable situs from the taxing state to determine the numbers of miles logged while traveling in that state. Cars paying highway tolls are another example of instrumentality taxation.

Direct taxes must be apportioned. The more money earned the higher the income tax. The more value real property has, the higher the property taxes are.

Indirect tax must be geographically uniform from state to state. Example: Sales tax or use tax. California sales tax is 8.5%. County by county taxing is constitutional as long as it is geographically uniform.

  1. Supremacy clause. Article 6 § 2. The most trivial federal laws predominate over the most important state laws.
    1. Preemption doctrine. Where congress intends to occupy a given field, any conflicting state law is invalid.

City of Burbank v. Lockheed. Burbank ordinance intended to shut down flights after 10:00 p.m. to prevent excessive jet noise. As a result nearby LAX had an increase in traffic flow and an increase in congestion, which interfered with FAA operations (interfered with federal policy). Aviation is an area where congress intends to occupy the field. The ordinance was stuck down as preempted by federal law.

  1. Supersession doctrine. Federal law supersedes any state law that is in direct conflict.

MBE: Florida passed a law prohibiting the sale of a particular diet drug by prescription. Congress subsequently delegated its commerce power authority to an executive agency, the FDA, which issued an administrative order allowing the sale of this diet drug by prescription. Conflict: The state law prohibited the sale by prescription and an administrative order of a federal agency was allowing the sale by prescription. The FDA order supersedes the conflicting state law. Therefore the sale of the drug within the state of Florida is lawful.

MBE: Oklahoma passed a law that all beef sold at any restaurant within the state must be cooked at a minimum temperature of 165 degrees. A prior federal law said all beef must be cooked at a minimum temperature of 150 degrees. Which law applied? The federal law was only establishing the minimum health standard to prevent a breakout of Ecoli. The state said it would comply with that, but they wanted to give greater protection than required by federal law. Especially in the area of health and safety, the area of food and drugs. The state law was constitutional. The supersession doctrine did not apply.

  1. Interstate compacts. A voluntary arrangement between two or more states that is designed to solve their common problems and that becomes part of the laws of each state.

Interstate compacts in the United States were first used by the American colonies to settle boundary disputes. After the American Revolution, states continued to use interstate compacts to meet their various needs. Although these compacts were necessary for peaceful interaction between the states, they posed a threat to the future of the United States: if states were allowed to form powerful coalitions, they might be tempted to break away from the rest of the country and fracture the Union.

Under Article I, Section 10, Clause 3, of the U.S. Constitution, “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.” This clause, the Interstate Compact Clause, was adopted with no debate. Moreover, it received only cursory discussion in subsequent papers written by the Constitution’s Framers, so its purpose and scope were not developed.

Most courts followed the lead of Justice Joseph Story (1779–1845), of the Supreme Court, an influential legal commentator of the nineteenth century. According to Story, the clause was meant to protect the supremacy of the federal government. With this general principle as guidance, courts interpreted the clause to give Congress the power to nullify an interstate compact if it frustrated federal aims.

Over the years, four steps have evolved to guide courts in their review of interstate compact cases. First, there must be an agreement between two or more states. If no concerted effort is actually undertaken by two or more states, Congress has no power to review the state actions under the Interstate Compact Clause. In determining whether there is an agreement, the court may ask whether the states have officially formed a joint organization, whether a state’s action is conditioned on action by another state, and whether any state is free to modify its position without consulting other states.

If the court finds that there is an agreement, the court will examine the agreement to determine whether it infringes on federal sovereignty. Not all interstate compacts infringe on federal supremacy. The question the court asks is whether the agreement between the states interferes with federal statutes or initiatives. For example, consider the federal legislation that outlaws certain automatic and semiautomatic assault weapons: title XI of the Public Safety and Recreational Firearms Use Protection Act (Pub. L. No. 103-322, 108 Stat. 1807 [codified as amended in scattered sections of 42 U.S.C.A.]). The purpose of the legislation is to limit firearm ownership. An interstate compact that legalized the banned assault weapons, and thus expanded firearm ownership, would infringe on the federal statute, whereas an interstate compact that outlawed additional assault weapons, and thus further limited firearm ownership, would not infringe on the federal statute.

If an interstate compact is found to infringe on federal initiatives, the court will then determine whether Congress has given its approval for the compact. Congress may grant approval before or after a compact is formed. Congress may also give indirect approval to a compact. For example, Congress may give its tacit approval to a compact on state boundaries if it subsequently approves the federal elections, appointments, and tax schemes of the states.

Finally, Congress may seek to amend or change an interstate compact after it has been approved. Congress may amend a compact or completely revoke its approval of a compact. Congress may also grant its approval with conditions attached.

The most common interstate compacts concern agreements to share natural resources, such as water; build regional electric power sources; share parks and parkways; conserve fish and wildlife; protect air quality; manage radioactive and other hazardous wastes; control natural disasters, such as floods; share educational resources and facilities; share police and fire departments; and grant reciprocity for driver’s licenses. Congress has passed statutes that require prior congressional approval for many such compacts.

If Congress has not asserted its authority over an interstate compact prior to its formation, the compact probably does not violate the Interstate Compact Clause. In Northeast Bancorp v. Board of Governors, 472 U.S. 159, 105 S. Ct. 2545, 86 L. Ed. 2d 112 (1985), Massachusetts and Connecticut passed statutes that allowed out-of-state holding companies in the New England region to acquire in-state banks. These statutes applied only if the state in which the out-of-state company was based also allowed out-of-state holding companies to acquire in-state banks. When the Federal Reserve Board (FRB) approved the interstate acquisition of banks in Massachusetts and Connecticut, three banking companies brought suit against the board.

The plaintiffs argued, in part, that the statutes constituted an interstate compact, and that the compact required congressional approval that had not been received. The U.S. Supreme Court disagreed. Assuming the statutes did create an interstate compact, they did not require congressional approval because they did not encroach on any asserted power of the federal government. In fact, Congress had authorized interstate bank acquisitions in an amendment to the Bank Holding Company Act of 1956 (70 Stat. 133 [as amended, 12 U.S.C.A. § 1841, 1842(d)). The amendment prevented the FRB from approving interstate bank acquisitions unless the states had reciprocating statutes. Massachusetts and Connecticut had merely accomplished what was implicitly authorized by the amendment, and the High Court cleared the way for final approval of the acquisitions.

In practice, few interstate compacts are held to violate federal imperatives. Despite the freedom of states to form interstate compacts, the trend is toward increased federal participation and control. Congress has inserted itself into the negotiations over, administration of, and participation in interstate compacts. This level of control may decrease as the United States seeks to trim its budget. However, Congress will remain constitutionally required to prevent states from forming coalitions that wield powers challenging those of the federal government.

Interstate compacts. A voluntary arrangement between two or more states that is designed to solve their common problems and that becomes part of the laws of each state.

Interstate compacts in the United States were first used by the American colonies to settle boundary disputes. After the American Revolution, states continued to use interstate compacts to meet their various needs. Although these compacts were necessary for peaceful interaction between the states, they posed a threat to the future of the United States: if states were allowed to form powerful coalitions, they might be tempted to break away from the rest of the country and fracture the Union.

Under Article I, Section 10, Clause 3, of the U.S. Constitution, “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.” This clause, the Interstate Compact Clause, was adopted with no debate. Moreover, it received only cursory discussion in subsequent papers written by the Constitution’s Framers, so its purpose and scope were not developed.

Most courts followed the lead of Justice Joseph Story (1779–1845), of the Supreme Court, an influential legal commentator of the nineteenth century. According to Story, the clause was meant to protect the supremacy of the federal government. With this general principle as guidance, courts interpreted the clause to give Congress the power to nullify an interstate compact if it frustrated federal aims.

Over the years, four steps have evolved to guide courts in their review of interstate compact cases. First, there must be an agreement between two or more states. If no concerted effort is actually undertaken by two or more states, Congress has no power to review the state actions under the Interstate Compact Clause. In determining whether there is an agreement, the court may ask whether the states have officially formed a joint organization, whether a state’s action is conditioned on action by another state, and whether any state is free to modify its position without consulting other states.

If the court finds that there is an agreement, the court will examine the agreement to determine whether it infringes on federal sovereignty. Not all interstate compacts infringe on federal supremacy. The question the court asks is whether the agreement between the states interferes with federal statutes or initiatives. For example, consider the federal legislation that outlaws certain automatic and semiautomatic assault weapons: title XI of the Public Safety and Recreational Firearms Use Protection Act (Pub. L. No. 103-322, 108 Stat. 1807 [codified as amended in scattered sections of 42 U.S.C.A.]). The purpose of the legislation is to limit firearm ownership. An interstate compact that legalized the banned assault weapons, and thus expanded firearm ownership, would infringe on the federal statute, whereas an interstate compact that outlawed additional assault weapons, and thus further limited firearm ownership, would not infringe on the federal statute.

If an interstate compact is found to infringe on federal initiatives, the court will then determine whether Congress has given its approval for the compact. Congress may grant approval before or after a compact is formed. Congress may also give indirect approval to a compact. For example, Congress may give its tacit approval to a compact on state boundaries if it subsequently approves the federal elections, appointments, and tax schemes of the states.

Finally, Congress may seek to amend or change an interstate compact after it has been approved. Congress may amend a compact or completely revoke its approval of a compact. Congress may also grant its approval with conditions attached.

The most common interstate compacts concern agreements to share natural resources, such as water; build regional electric power sources; share parks and parkways; conserve fish and wildlife; protect air quality; manage radioactive and other hazardous wastes; control natural disasters, such as floods; share educational resources and facilities; share police and fire departments; and grant reciprocity for driver’s licenses. Congress has passed statutes that require prior congressional approval for many such compacts.

If Congress has not asserted its authority over an interstate compact prior to its formation, the compact probably does not violate the Interstate Compact Clause. In Northeast Bancorp v. Board of Governors, 472 U.S. 159, 105 S. Ct. 2545, 86 L. Ed. 2d 112 (1985), Massachusetts and Connecticut passed statutes that allowed out-of-state holding companies in the New England region to acquire in-state banks. These statutes applied only if the state in which the out-of-state company was based also allowed out-of-state holding companies to acquire in-state banks. When the Federal Reserve Board (FRB) approved the interstate acquisition of banks in Massachusetts and Connecticut, three banking companies brought suit against the board.

The plaintiffs argued, in part, that the statutes constituted an interstate compact, and that the compact required congressional approval that had not been received. The U.S. Supreme Court disagreed. Assuming the statutes did create an interstate compact, they did not require congressional approval because they did not encroach on any asserted power of the federal government. In fact, Congress had authorized interstate bank acquisitions in an amendment to the Bank Holding Company Act of 1956 (70 Stat. 133 [as amended, 12 U.S.C.A. § 1841, 1842(d)). The amendment prevented the FRB from approving interstate bank acquisitions unless the states had reciprocating statutes. Massachusetts and Connecticut had merely accomplished what was implicitly authorized by the amendment, and the High Court cleared the way for final approval of the acquisitions.

In practice, few interstate compacts are held to violate federal imperatives. Despite the freedom of states to form interstate compacts, the trend is toward increased federal participation and control. Congress has inserted itself into the negotiations over, administration of, and participation in interstate compacts. This level of control may decrease as the United States seeks to trim its budget. However, Congress will remain constitutionally required to prevent states from forming coalitions that wield powers challenging those of the federal government.

  1. Full faith and credit  clause. Article IV, § 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the U.S. It states that full faith and credit clause shall be given in each state to the public acts, records, and judicial proceedings of every state. The statute that implements the clause, 28 U.S.C.A. § 1738, further specifies that a state’s preclusion rules should control matters originally litigated in that state. The full faith and credit clause ensures that judicial decisions rendered by the courts in one state are recognized and honored in every other state. It also prevents parties from moving to another state to escape enforcement of a judgment or to relitigate a controversy already decided elsewhere, a practice known as forum shopping.

In drafting the full faith and credit clause, the framers of the constitution were motivated by a desire to unify their new country while preserving the autonomy of the states. To that end, the courts of other states would not ignore judgment rendered by the courts of another. The S.C. reiterated the framers’ intent when it held that the full faith and credit clause precluded any further litigation of a question previously decided by an Illinois court in Milwaukee County v. M. E. White Co., 296 U.S. 268 (1935). The Court held that by including the clause in the Constitution, the framers intended to make the states integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.

The full faith and credit clause is invoked primarily to enforce judgments. When a valid judgment is rendered by a court that has jurisdiction over the parties, and the parties receive proper notice of the action and a reasonable opportunity to be heard, the full faith and credit clause requires that the judgment receive the same effect in other states as in the state where it is entered. A party who obtains a judgment in one state may petition the court in another state to enforce the judgment. When this is done, the parties do not relitigate the issues, and the court in the second state is obliged to fully recognize and honor the judgment of the first court in determining the enforceability of the judgment and the procedure for its execution.

The full faith and credit clause has also been invoked to recognize the validity of a marriage. Traditionally, every state honored a marriage legally contracted in any other state. However, in 1993, the Hawaii Supreme Court held that Hawaii’s statute restricting legal marriage to parties of the opposite sex establishes a sex-based classification, which is subject to strict scrutiny if challenged on equal protection grounds Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530. Although the court did not recognize a constitutional right to same-sex marriage, it raised the possibility that a successful equal protection challenge to the state’s marriage laws could eventually lead to state-sanctioned same-sex marriages. In response to the Baehr case, Congress in 1996 passed the Defense of Marriage Act (110 Stat. § 2419, which defines marriage as a union of a man and a woman for federal purposes and expressly grants states the right to refuse to recognize a same-sex marriage performed in another state.

During the 1980s and 1990s, the full faith and credit clause was applied to new matters. Child custody determinations had historically fallen under the jurisdiction of state courts, and before the 1970s, other states did not accord them full faith and credit enforcement. As a result, a divorced parent who was unhappy with one state’s custody decision could sometimes obtain a more favorable ruling from another state. This was an incentive for a dissatisfied parent to kidnap a child and move to another state in order to petition for custody. In response to this situation, the Uniform Child Custody Jurisdiction Act (UCCJA) was adopted by the National Conference of Commissioners on Uniform State Laws in 1968. By 1984, every state had adopted a version of the UCCJA. In 1980, Congress passed the Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A), which aids enforcement and promotes finality in child custody decisions by providing that valid custody decrees are entitled to full faith and credit enforcement in other states. The Violence Against Woman Act of 1994 codified in scattered sections of 8 U.S.C.A., 18 U.S.C.A., 42 U.S.C.A.]) extends full faith and credit to the enforcement of protective orders, which previously were not enforced except in the state where they were rendered. This gave a new measure of protection to victims who moved to a different state after obtaining a protective order in one state.

IV. Protection Of Individual Rights. 14th amendment due process and equal protection.

  1. State action. State action is required of governmental conduct and must be satisfied before private discrimination can be restricted under the 14th and 15th amendment. Under the 13th amendment state action does not apply. Purely private acts of discrimination may be punished to prevent slavery or involuntary servitude State action applies to employment, affordable housing, restriction or government benefits or public services..
  2. Show there is state action and that the 14th or 15th amendment applies to restrict private acts of discrimination. State action may also apply to 1st amendment rights.
  3. Show that either the due process or equal protection clause applies.

Plaintiffs must show that a private citizen is discriminating against them in areas such as employment, affordable housing and restrictions on government benefits or public services. The plaintiff must show that there is a nexus/connection between the private discriminatory act and the state government.

Areas where the SC has found state action.

  1. Public function. A private entity performing activities traditionally and exclusively that are carried on by state or municipality.

Example: A company town. If a private town is discriminating against anybody working or living in that town the 14the amendment equal protection applies and the person who is discriminating will be subject to discipline. There aren’t many private towns existing today and it’s not likely to be seen on the exam.

There is no public function, no state action for a privately owned utility company that is under heavy state regulation.

Jackson v. Metropolitan Edison. A utility company cut off the service without giving a notice and a hearing. The plaintiff claimed their procedural due process rights were violated because they didn’t receive notice or a hearing before their electricity was turned off due to non-payment. The SC held that utility companies do not exercise powers traditionally and exclusively reserved to the state. Therefore, no state action because a privately owned utility company is not a public function.

  1. Significant state involvement. The courts will look at whether there is significant state entanglement between the private individual who is doing the discriminating and the government itself, to see if there is significant state involvement.
    1. Public schools. Acts of public schools constitute state action because a public school is an agent of the state.

Private schools. Private school that purchases textbooks from the state. The state supplying textbooks to a private school that has a discriminatory admissions policy is enough of a nexus for significant state involvement.

No state action. A private school merely licensed by the state is not enough to constitute significant state involvement.

  1. State leased property. Burton v. Willington Parking Authority. City built and owned a parking garage and leased a restaurant to a private citizen in that parking garage that was discriminating on the basis of race. Can that private individual be punished? Can their acts be restricted under the equal protection clause? Yes, the SC held there is state action. Therefore the court can then apply the equal protection clause. A symbiotic relationship existed because the city played a significant role in the success of the restaurant business and based on that relationship there was significant state involvement, which constituted state action.

No state action. Where a business is required to have a liquor license.

  1. Facilitation or encouragement doctrine. There is state action where the government encourages or facilitates private acts of discrimination.

Shelly v. Kramer. There is state action where a state encourages private discrimination by enforcing a racially discriminatory zoning ordinance.

  1. Bill of rights. The first ten amendments of the constitution apply to limitations on the federal government. However, the due process clause of the 14th amendment that acts as a conduit by which these bill of rights limitations are made applicable to the state known as selective incorporation.

Bill of rights provisions that do not apply to the states:

  1. 2nd amendment right to bare arms.
  2. 5th amendment rights to a grand jury in criminal cases.
  3. 7th amendment rights to jury trials for civil cases.
  4. 8th amendment right against excessive bail.
  5. 14th amendment privileges and immunities clause does not make the Bill of Rights applicable to the states.

MBE: 14th amendment privileges and immunities has never been a correct answer on the MBE.

Retroactive legislation (Usually the wrong answer on the MBE.)

  1. Contracts clause article 1 § 10. Applies only to states. It prevents states from impairing the obligation of both public and private contract unless there is a significant public need. A strong source of power and generally a winner in court. A state defense argument is it is regulating under police powers and that they didn’t impair the contract; the state merely modified it under police power for health and safety purposes.

Example: L.A. is trying to get a new football team. The city sells revenue bonds to finance the construction of a stadium. Private purchasers of the bond will be paid back with interest over a period of 20 years. To repay the bond debt the minimum price of a ticket will be 20.00. Five years before the bond debt has been repaid, the mayor decides senior citizens could attend games for 10.00 tickets. This would violate the contract clause, an impairment of the obligation to the bondholders. The change would be unconstitutional because it violates the cities obligation to the bondholders by decreasing their security that the debt would be repaid.

  1. Expost factos laws. Are unconstitutional.
    1. They make conduct criminal that wasn’t when it was committed.
    2. Increase punishment for a crime.
    3. Decrease the amount of evidence needed to convict.

MBE: Examiners try to put it in a civil context.

  1. Bill of attainder. Unconstitutional legislative punishment of a named group or individual without a trial. Taking away a commercial license or employment.

MBE: A state insurance agent was critical of a new law passed by state legislatures, so they passed a new law stating that the state insurance license of Jane Doe is henceforth revoked. Invalid because they attempted to take away employment from a named person without a trial.

  1. Due process. Article XIV § 1. All persons born or naturalized in the U.S. are citizens of the U.S. and the state where they reside. No state shall make or enforce any law, which shall abridge the privileges or immunities of citizens, nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The 14th amendment protects;
  2. The right of national citizenship.
  3. The right to petition congress for a redress of grievances.
  4. The right to peacefully assemble.
  5. The right to interstate travel.

The due process clause is used to make the 14th amendment applicable to the states not the privileges and immunities clause. Ever since the Slaughterhouse cases the privileges and immunities clause does not make the bill or right applicable to the states under the 14th amendment because it was not chosen to be the foundation of the bill of rights selective incorporation, rather it was the due process clause.

Exception.

A couple moved to California from Oklahoma and wanted to receive unemployment benefits like they were receiving in Oklahoma. The California rates were 2-3 times higher than the rate in Oklahoma. California denied them unemployment benefits because the state had a residency requirement before they could receive payments. The SC held the requirement unconstitutional because it denied the right to travel and under the 14th amendment privileges and immunities clause by interfering with their right to interstate travel.

Fundamental rights.

  1. Procedural due process safeguards of notice and a hearing are available whenever there is a serious depravation of a life, liberty or property interest. To determine if a person is afforded a hearing, the court balances the severity of depravation to the individual against the governmental interest in administrative efficiency.

MBE: If the exam mentions notice or hearing it is a due process issue. MBE: It’s always a wrong answer if something is a privilege not a right, when dealing with due process as there is no distinction.

Due process liberty interests.

  1. Right to contract
  2. Right to engage in gainful employment.
  3. Right of natural parents in care and custody of their children.
  4. Right to refuse unwanted medical procedures.

Due process property interests.

  1. Prior hearing required before welfare benefits are cancelled.
  2. Post termination disability benefits hearing.
  3. Right to public education. Students have a right to a hearing before being suspended from school. (Medical student dismissed for poor academic performance was based on reliable statistical evidence and there is no due process safeguard to appear and be heard.)
  4. Wage garnishment.
  5. Continued public employment where an individual is terminated for cause and denied public employment. Most are terminable at will, but some are not.
  6. Tenured teachers.
  7. Civil service employees.
  1. Substantive due process.
    1. Economic regulation. Subject to rational basis scrutiny. For economic regulation to be upheld it must be reasonably related to a legitimate objective. Almost any type of economic regulation will have some type of legitimate purpose. Rational basis review is a test used to determine a law’s constitutionality. To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review and is generally used in cases where no fundamental rights or suspect classifications are at issue.
    2. Fundamental rights regulations are subject to strict scrutiny. A standard of judicial review for a challenged statute where the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify it.
      1. Right to privacy. Intermediate scrutiny is a test used in some contexts to determine a law’s constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some 1st amendment cases.
        1. Contraception. The right to use and purchase contraceptives exists for both married and unmarried persons.
        2. Procreation. The right to have children must be free from excessive government intrusion. Usually dealing with the use of contraception’s.
        3. Abortion. The right of a women to have an abortion without state interference. Strict scrutiny is not used because two competing compelling interests are in conflict. Protecting the woman’s health versus protecting the fetus.

Planned Parenthood v. Casey States may not prohibit abortion, but may regulate to protect the mother’s health and the life of the fetus as long as it does not create an undue burden on the woman’s right to obtain an abortion. After viability, (third trimester) a state may prohibit abortion unless it is necessary to protect the woman’s life or health.

No undue burden.

  1. Roe v. Wade an abortion is broken down by trimesters.
    1. First trimester the govt. may not prohibit abortion.
    2. Second trimester the fetus is still not viable the govt. may not prohibit, but may regulate if necessary to protect the mother’s health.
    3. Third trimester a govt. may prohibit abortion unless it is necessary to protect the mother’s health.

An abortion requires:

  1. Informed consent.
  2. Requires detailed record keeping.
  3. Spousal consent is not required.
  4. Consent of both parents is not required. However, consent of one parent is required. Exception: Judicial bypass for a minor’s best interest where there is sufficient maturity.
  5. Consent of one parent does not apply to emancipated minors.
  6. Partial birth abortion is unconstitutional.
  7. There is no right to abortion funding for indigents. (No funding through Medicaid).
  8. Marriage. The right to marry and any limitations or restrictions is fundamental and subject to strict scrutiny.

Loving v. Virginia. No restrictions on interracial marriages.

Wisconsin statute said a father could not remarry unless he was current on his child support payments. Strict scrutiny struck down the law, as there were other less restrictive means available to achieve the state’s objective.

  1. Private education. Wisconsin v. Yoder. Parents have a right to privately educate their children.
  2. Family relations. The nuclear family has a right to remain together. Does not apply to unrelated people living together.

Moore v. City of Cleveland. City zoning ordinance limited grandmother’s ability to live with her grandchildren. (Anti-group ordinances will be scrutinized closely.)

Fundamental rights do not extend to necessities of life such as food, clothing, shelter and medical care.

Gay rights. Lawrence v. Texas. A state has no legitimate interest in prohibiting sexual relations between consenting adults. The liberty protected by the constitution allowed homosexual men the right to make individual decisions concerning the intimacy of their physical relationships. The due process clause gives them full right to engage in private conduct in dwellings and other private areas without government intervention.

Boy scouts of America could not be forced to accept gay scoutmaster, striking down a N.J. law that prohibited discrimination based on sexual orientation.

  1. Takings. Private property shall not be taken for public use without just compensation. Three ways property can be taken:
    1. Eminent domain. Power of the federal or state government to take property for public use.
      1. Just compensation must be paid.
      2. Title passes immediately.
      3. Litigation as to the amount that must be paid.
  2. Inverse condemnation. Action against a government entity where property has been taken without eminent domain taking.

Example: Airport is built and the land use has been taken due to excessive noise and interference with use and enjoyment of the land.

  1. Police powers. State passes an ordinance for health, safety and welfare and argues it’s not a taking, merely a permissible regulation under police powers and therefore no compensation need be paid.

Confiscation or physical occupation.

Nolan. Public was granted an easement across owner’s beachfront property.

New York City ordinance required owners of rental units to install cable TV wires in each apartment within the city. Owners wanted recovery of the expense related to installing the cables, arguing the space was being taken and entitled to damages. The Court agreed.

Regulation that leaves no reasonable economically viable use.

Lucas. S.C. passed a law prohibiting beachfront property owners from constructing a habitable structure for any purpose. Landowner paid one million to purchase land. The Court ruled this was a taking that left the owner no reasonably viable economic use.

  1. Right to travel. The right to travel from state to state. Apply strict scrutiny.
    1. Implicates the commerce clause.
    2. Implicates privileges and immunities clause of the 14th amendment.
    3. Implicates substantive due process fundamental rights.

Residency duration requirements are unconstitutional for medical and library services.

Residency requirements are upheld to obtain divorce proceedings.

50-day residency requirement is constitutional to prevent voter fraud.

Duration residency requirements are constitutional for reduced tuition fees to residents at state universities, where out of state residents may pay higher fees.

Foreign travel. Under the rational basis test, reasonable restrictions for passport use have been upheld based on national security.

  1. Right to vote. One person, one vote for all federal, state and local elections.

Reynolds v. Simms. Under strict scrutiny property interest restrictions on the right to vote are generally unconstitutional.

Exception: Special limited purpose district (such as water storage) voting can be limited to landowners and apportioned to percentage of land owned.

Reapportionment. Gerrymandering is apportionment schemes that are deliberately and arbitrarily distorting political districts for party purposes. If the purpose is to keep an ethnic group from electing a candidate or to keep a school district segregated, they will be stuck down as violating equal protection.

Ballad access. The right to be a candidate is not a fundamental right. Rational basis scrutiny applies. States may require:

  1. Minimum age.
  2. Maximum age.
  3. Payment of a reasonable filing fee.
  4. Reasonable residency requirements.

MBE: A state law said a person may not become an independent candidate if they are registered with a political party in the previously year or voted in that parties primary. Under strict scrutiny the restriction was upheld.

Cal. Democratic Party v. Jones. Candidates for public office can gain access to the general ballot by winning a qualified political party’s primary. In 1996, voter approved Proposition 198 changed California’s partisan primary from a closed primary, in which only a political party’s members can vote on its nominees, to a blanket primary, in which each voter’s ballot lists every candidate regardless of party affiliation allowing voters to choose freely among them. The candidate of each party who wins the most votes is that party’s nominee for the general election. The California Democratic Party, the California Republican Party, the Libertarian Party of California and the Peace and Freedom Party have historically prohibited nonmembers from voting in their party’s primary. Each party filed suit against Bill Jones, the California secretary of state, alleging that the blanket primary violated their 1st amendment right of association. Jones countered that a blanket primary will intensify the election and allow for better representation in elected office. Does California’s voter approved Proposition 198, which changes its partisan primary from a closed primary to a blanket primary, violate political parties’ 1st amendment right of association? Yes, The Court held that California’s blanket primary violates a political party’s 1st amendment right of association. Proposition 198 forced political parties to associate with, to have their nominees and hence their positions, determined by those who, at best, have refused to affiliate with the party and, at worst, have expressly affiliated with a rival, wrote Justice Scalia for the majority. A single election in which the party nominee is selected by nonparty members could be enough to destroy the party.” Proposition 198 takes away a party’s “basic function” to choose its own leaders and is functionally “both severe and unnecessary.

E. Equal protection challenges apply where persons who are similarly situated are being treated differently. Applies to the states through the 14th Amendment. Reverse selective incorporation is where the 14th amendment equal protection clause applies back to the federal government under the due process clause of the 5th amendment. There are three standards of review under equal protection strict scrutiny, middle-tier and rational basis.

Standards of review.

  1. Strict scrutiny. The burden of persuasion is on the state to show the law is necessary to achieve a compelling state interest. Necessary means there are no less restrictive means available to achieve the states interest. If there is an alternative means then the law is not necessary. Strict scrutiny applies to:

Strict scrutiny subject matter applies to.

  1. Protected first amendment rights.
  2. Suspect classes. (Look for intentional unequal treatment for strict scrutiny to apply.)
    1. Race.

Intentional or purposeful discrimination must be shown to trigger strict scrutiny. Discriminatory impact is not enough.

Washington v. Davis On a police qualifying test it turned out that black applicants were four-times more likely to fail than whites. There is a discriminatory affect, but no discriminatory purpose and where there is only a discriminatory effect that is not enough to trigger strict scrutiny. The police-qualifying test was upheld using merely the rational basis test.

Segregation.

Dejure or intentional segregation is unconstitutional and applies to all public areas. Strict scrutiny would be used under equal protection to strike down such laws.

Defacto segregation. If there is no discriminatory purpose there is no equal protection violation and rational basis test is used.

Bussing may be used to achieve desegregation. Racial quotas may be used to bus children.

MBE: Bussing must be a temporary measure to remedy pass discrimination otherwise the bussing scheme would be struck down under strict scrutiny.

Affirmative action. Employment, college admissions, voting rights, quota systems and promotions in the work place.

Quota systems.

Richmond v. Crossen. Race based affirmative action plans are subject to strict scrutiny. All race-based quotas will be set aside to remedy past discrimination. Affirmative action is no longer necessary to further a compelling interest. However, numerical goals are favored if there is clear proof of past discrimination in that particular institution to remedy that past discrimination.

Employment promotion preferences.

College admission.

Regents of UCal. v. Bakke. Universities cannot establish quotas for members of certain racial or ethnic groups or put them on separate admission tracks. Instead race or ethnicity may be a plus in the particular applicant file.

Gruter v. Bolinger. Reaffirmed student body diversity is a compelling state interest. Diversity may be achieved by tailoring the admissions program without making race a defining feature of the applicant.

Graf v. Bolinger. SC struck down University of Michigan’s undergraduate admissions guideline where every applicant from a minority group was automatically awarded 20 of the 100 points needed to guarantee admissions. The admissions scheme is not narrowly tailored and violates the equal protection clause.

MBE: A state passes a law that discriminates on the basis of race. The subject matter is strict scrutiny. Who has the burden? The state. It must show that the law is necessary, that there is no other way for the state to accomplish its purpose other than passing this law and it is the least restrictive means. The state is probably going to lose therefore the challenge will probably win. If the subject matter is strict scrutiny pick equal protection. Likely to be the most correct answer. Under strict scrutiny a law is presumptively invalid.

  1. Alienage. (Not always suspect.)

When the federal government discriminates against aliens, use rational basis test because congress has plenary power over aliens under its alienation and naturalization power under Article 1 § 8.

Mathews v. Diaz. Congress required five-year residency to acquire medical insurance benefits. Three aliens that lawfully entered the U.S. less than five years ago were denied medical insurance and brought action under equal protection. All persons, aliens and citizens alike, are protected by the due process clause butt this doesn’t mean aliens are entitled to enjoy all the advantages of citizenship or that they must be placed in a single legal classification.  Legitimate distinctions may justify benefits for one class and not for others.

Exception: Participation in government. Aliens may be excluded from teaching positions, being policemen or serving on a jury.

  1. National origin.
  2. Fundamental rights.
    1. Right to vote.
    2. Right to travel.
    3. Right to privacy.
      1. Contraceptives.
      2. Abortion.
      3. Marriage.
      4. Procreation.
      5. Private education.
      6. Family relations.

Suspect classifications. A class of individuals that have been historically subject to discrimination such as race and ethnic classifications.  Any statute that makes a distinction between individuals based on any of the suspect classifications (ie. alienage, race) will be subject to a strict scrutiny  standard of review before the Supreme Court.  The court also uses the terms “discrete” or “insular”  to describe minorities that are suspect classes.  These terms are derived from the footnote in  Carolene productions the most famous footnote in Constitutional law.

Suspect classification refers to a characteristic used in applying a law, which a court will review subject to a strict scrutiny standard. A classification is called suspect because it is likely to be based on illegal discrimination. The clearest example of a suspect classification is race. History shows that most laws that use race as a way to classify people are based on racial discrimination and have no legitimate purpose. Racial classifications are automatically suspect, so courts apply the highest level of scrutiny and almost always strike down racial classifications. There is no definitive list of suspect classifications, but the Supreme Court typically treats as suspect any classification of people who:

  1. Have an inherent trait.
  2. Have a trait that is highly visible
  3. As a class, have been disadvantaged historically.
  4. Are part of a group that has historically lacked effective representation in the political process.
  1. Middle-tier scrutiny. (Quasi-suspect scrutiny). The burden is on the state to show that the law is substantially related to an important interest. (Mid-tier is much closer to strict scrutiny that rational bases test.) To be substantially related there must be an exceedingly persuasive justification.

Middle tier scrutiny applies to:

  1. Gender discrimination. Discriminatory impact is not enough to trigger middle-tier scrutiny there must be purposeful discrimination.

Example: A law gave hiring preferences to male veterans for civil service jobs. 98% of the veterans were male. SC held there was a discriminatory affect, but no discriminatory purpose therefore middle-tier scrutiny was not triggered and the law was upheld under the rational basis test.

Sexual stereotype laws are usually upheld as unconstitutional.

Nursing. Women only admission policy at a nursing college was struck down because it reinforced the stereotype of nursing as a profession for women only.

Alimony. Alabama law that only required men to pay alimony was struck down as unconstitutional implying archaic stereotypes.

  1. Illegitimacy. A law that benefits legitimate children and prejudices illegitimate children is likely to be unconstitutional. If there is a judicial determination of paternity the child is treated as a legitimate for purposes of inheritance through his father.

A law that prevents illegitimate children from inheriting from a father that died intestate was struck down. The Court held that was not the least restrictive means to prevent false paternity.

A state cannot totally bar an illegitimate from inheriting.

Lali v. Lali A law that allowed illegitimate children to inherit by intestate succession, only if the court made a finding of paternity during the father’s lifetime was upheld as a scheme that furthered orderly and just distribution at death.

  1. Illegal alien children have a very narrow limited right to free public education through 12th grade. (Doesn’t apply to illegal alien adults.)
  2. Content neutral regulation of speech. (Time, place, manner.)
  3. Regulation of cable TV.
  1. Rational basis test. Applies to all other type of classifications. The burden is on the plaintiff to show the law is not rationally related to any legitimate interest. Applies to:
  2. Poverty.
  3. Wealth.
  4. Age.
  5. Mental retardation.
  6. Necessities of life. (Food, clothing and medical care.)
  7. Social and economic welfare measures.

MBE: The state passes a law that says all busses must be equipped with seatbelts. The law does not apply to other vehicles, so bus companies are being treated differently and may raise an equal protection challenge. The level of scrutiny is rational basis because it falls under social and economic welfare measures. Does the state have one good argument? Yes, safety. (police powers.) Burden is on the bus company to show that the law is not rationally related to any single legitimate interest. Bus companies will lose because states have a legitimate safety interest. Rational basis plaintiffs lose! If the subject matter of an MBE question is rational basis don’t pick equal protection as an answer choice, it’s likely to be the wrong answer.

F. Privileges and immunities. Are concepts contained in the U.S. Constitution that place the citizens of each state on an equal basis with citizens of other states in respect to advantages resulting from citizenship in those states and citizenship in the United States.

The Privileges and Immunities Clauses are found in Article IV of the U.S. Constitution and the 14th amendment. Both clauses apply only to citizens of the United States. Aliens and corporations are not citizens and, therefore, are not entitled to this protection. These clauses have proven to be of little import because other constitutional provisions have been used to settle controversies. In large part the insignificance of the clauses has been based on restrictive readings of the clauses by the U.S. Supreme Court.

Article IV provides that “The Citizens of each State shall be entitled to all Privileges and Immunities in the several states.” The purpose of the clause was to facilitate the unification of the independent states into one nation so that citizens traveling throughout the country would receive the same treatment as the citizens of the states through which they passed.

The privileges and immunities that are protected under Article IV include the right to receive protection from state government; the right to acquire and possess all kinds of property; the right to travel through or reside in any state for purposes of trade, agriculture, or professional endeavors; the right to claim the benefit of the writ of Habeus corpus; the right to sue and defend actions in court; and the right to receive the same tax treatment as that of the citizens of the taxing state.

This clause forbids a state from unjustly depriving citizens from other states of any rights derived from state citizenship solely on the basis of nonresidence. Yet the Supreme Court has never interpreted it to preclude all deferential treatment of in-state citizens. As a result, the Privileges and Immunities Clause does not bar differential state standards governing the practice of certain professions. Out-of-state doctors, lawyers, and other professionals may be required to prove their competency based on standards that are higher than those applied to their in-state counterparts. Tuition rates at public universities typically lower for in-state students. Out-of-state residents are charged more for hunting and fishing licenses than are in-state residents. Such discrepancies are generally accepted as justifiable because they advance legitimate state interests.

The Supreme Court has struck down state laws that infringed rights guaranteed by the Privileges and Immunities Clause of Article IV. In Hicklin v. Orbeck, 437 U.S. 518 (1978), the Court ruled that the state of Alaska failed to show a reasonable purpose for a state law that required employers to give a hiring preference to in-state residents who applied to work on the construction of oil or gas pipelines.

However, the S.C. has rarely used the privileges and immunities clause of Article IV to invalidate discriminatory laws. The due process and equal protection clause of the 14th amendment are commonly applied to determine the validity of state laws that unjustly discriminate between residents and nonresidents of a state.

The Fourteenth Amendment’s Privileges and Immunities Clause has virtually no significance in civil rights laws. The clause states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.” This clause protects a person’s rights as a citizen of the United States from unreasonable state action or interference.

The privileges and immunities of U.S. citizenship that cannot be unreasonably abridged by state laws include the right to travel from state to state; the right to vote for federal officeholders; the right to enter public lands; the right to petition Congress to redress grievances; the right to inform the national government of a violation of its laws; the right to receive protection from violence when in federal custody; the right to have free access to U.S. seaports; the right to transact business with and engage in administering the functions of the U.S. government; the right to have access to federal courts; and the privilege of the writ of habeas corpus.

The S,C, has narrowly construed the privileges and immunities clause of the Fourteenth Amendment since the 1873 Slaughterhouse cases, 21 L. Ed. 394 (1873). The case involved a Louisiana state law that gave one meat company the exclusive right to slaughter livestock in New Orleans. Other packing companies were required to pay a fee for using the slaughterhouses. These companies filed suit, claiming that the law violated the Privileges and Immunities Clause of the Fourteenth Amendment.

The Court upheld the Louisiana monopoly law, ruling that the privileges and immunities clause had limited effect because it reached only privileges and immunities guaranteed by U.S. citizenship, not state citizenship. Because the law in question dealt with states’ rights, the Fourteenth Amendment had no effect. The Court ruled that the Fourteenth Amendment was designed to grant former slaves legal equality, not to grant expanded rights to the general population. In addition, the Court was concerned that a broad interpretation of the Fourteenth Amendment would give too much power to the federal government and distort the concept of federalism, which grants the states a large measure of power and autonomy.

The Court has consistently followed the restrictive interpretation given the Privileges and Immunities Clause by this decision. The clause has little significance today in invalidating state statutes that present a constitutional question. When state laws infringe the fundamental rights of U.S. citizenship, the Court usually invokes the Equal Protection Clause to analyze the constitutionality of the state action.

However, the S.C. has used the Privileges and Immunities Clauses in two recent cases. In Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, (1998), the Court ruled that a New York tax law that effectively denied only nonresident taxpayers an income tax deduction for alimony paid violated the Privileges and Immunities Clause. In Saenz v. Doe, 526 U.S. 489, (1999), the Court struck down a California law that limited new residents to the welfare benefits they would have received in the state of their prior residence. It based its decision in part on the Privileges and Immunities Clause. Justice Stevens stated that the right to travel is protected “not only by the new arrival’s status as a state citizen, but also by her status as citizen of the United States.” The Privileges and Immunities Clause guaranteed the right of a citizen to “become a citizen of any State of the Union.” It did not permit the states to “select their citizens.”

V. 1st amendment guarantee Issues.

Writing a con law essay on 1st amendment procedural issues. Make a facial attack by knocking out the statute on its face.

  1. Is the statute overbroad? An overbroad statute is one that punishes both protected and unprotected speech. Red flag words like all or any.

Example: All 1st Amendment activities are banned at airport terminals.

  1. Is it vague? A law will be void for vagueness when it is so unclearly defined that persons of ordinary intelligence must guess at its meaning.

Example: A statute that prevents offensive language and opprobrious words, an ordinary individual would not know what language is offensive or what opprobrious means.

  1. Prior restraint. Government restriction on free speech in advance of publication is generally unconstitutional.

Example: A judge issues a gag order to enjoin the media from pre-trial publicity in a criminal case. Absent a showing of clear and present danger, the gag order would be struck down as a prior restraint and not the least restrictive means where the judge could have exercised other options, such as a change of venue or given jury instructions.

Exception: Where national security interests is involved.

CNN was broadcasting conversations between General Noriega and his attorneys, suddenly the screen went blank. Why? The broadcast was banned for national security reasons.

  1. Unfettered/unregulated discretion.
  1. Freedom of religion. Separation of church and state.
  2. The establishment clause. The government may not pass laws that prefer or aid one religion over another.

Lemon v. Kurtzman. In order to not violate the establishment clause the Lemon test is used.

  1. The primary purpose of the law must be secular.
  2. The primary effect of the law must not advance nor inhibit religion.
  3. The law must not foster excessive government entanglement with religion.
  4. Government sponsored religious activities in public schools that violate the Lemon test and are therefore unconstitutional.
    1. Required non-denominational prayer has been struck down.
    2. Daily bible reading is unconstitutional.
    3. A moment of silent voluntary prayer is unconstitutional.
    4. Santa Fe School District. Student led prayer at football games and other school sponsored events constitute excessive entanglement and are unconstitutional.
    5. Government aid to religious schools for construction grants and salary supplements are unconstitutional at the elementary and secondary level. Rational: Young children are more likely to become indoctrinated by religious teachings than college students. The same aid given to colleges and universities is constitutional because they are less likely to be indoctrinated by religious teachings.

Government aid to parochial schools that are not used for religious purposes is constitutional but the same aid must be made available to public schools on the same terms.

Examples.

  1. Governments aid in the form of health tests.
  2. Bussing children to parochial schools.
  3. Government loans of textbooks to parochial schools.
  4. Local school districts may provide government funding to religious schools for computers and software.
  5. Religious ceremonies and displays.

Ceremonies.

Opening prayer. Marsh v. Chambers. A state legislature opening prayer led by a state paid chaplain is not excessive entanglement. The SC held this was a long historical tradition dating back to the colonial days. However, a state court judge in N.C. knowing of the practice in Nebraska attempted to start each day with an opening prayer. The court considered this excessive entanglement.

Religious displays. The test is whether a reasonable observer would believe the government was endorsing a particular religious view. Look at the context in which the religious symbol is displayed. If there is the presence of other non-religious symbols nearby, that is usually enough to show the reasonable observer that the government was not endorsing a particular religious view.

Example: A nativity display alongside Santa Claus and a Menorah.

Lynch v. Donnelly. A municipal religious display that had a nativity scene and also had two plastic reindeers, a plastic Santa Claus and a season’s greetings banner. Does that constitute excessive entanglement and violate the Lemon test? No, religious displays taken as a whole that celebrate the holiday season will likely be upheld.

  1. Free exercise of religion clause.A person’s religious beliefs are absolutely protected. However, conduct in furtherance of those beliefs may be regulated. Government regulation that burdens free exercise religious rights is purposefully interfering with individual exercise of religion. It may not be religiously motivated.
    1. If there’s purposeful interference with an individual’s free exercise of religion, apply strict scrutiny and the law will be presumptively invalid.
    2. On the other hand, If the law imposes an incidental burden on an individual’s free exercise of religion, apply the balancing test, which is similar to the rational basis test and the law will generally be upheld.

Purposeful interference.

Church of Lukumie Babali v. City of Hialeah. A city ordinance banned all animal sacrifices within city limits because the Santeria sect was slaughtering small animals, chickens, goats and pigs as part of its religious ritual. The city considered the group’s practices a nuisance and passed the ordinance hoping the religious group would leave the city and performs its rituals someplace else. The motive was clearly purposeful interference with free exercise rights and because of that strict scrutiny was used striking down the ordinance 9-0.

Incidental burden.

Oregon v. Smith. A generally applicable criminal law that banned all use of peyote. An Indian tribe smoked peyote as part of its religious practices and was unable to do so. The state had a strong interest in drug and narcotic enforcement. The SC did not use strict scrutiny and the law was upheld under the balancing test.

City of Boerne v. Flores. The Religious Freedom Restoration Act was passed by congress. The act required strict scrutiny to apply to free exercise violations. Parishioners of a small church wanted to expand their facility because they had increased membership and applied for a building permit. The city would not grant the permit because the church was located in a historic district, it was a landmark and for aesthetic reasons (exercise of police powers) the city did not want the church torn down and rebuilt. There was no purposeful interference so strict scrutiny was not applied. The SC balanced the cities aesthetics argument against the parishioner’s burden on free exercise of religion and held the cities denial was proper because the denial of the permit was merely an incidental burden. The SC also struck down the RFRA saying congress cannot determine what constitutes a constitutional violation and they cannot decide what standard of review to apply to such matters.

  1. Freedom of expression and association.
  2. Clear and present danger test. Clear and present danger is a term used by Justice  Holmes in the unanimous opinion for the case Schenck v. U.S. concerning the ability of the government to regulate speech against the draft during world war 1.

Brandenburg v. Ohio. Under Brandenburg, speech may be punished or restricted if;

  1. The speech is directed at producing imminent unlawful conduct.
  2. The speech is likely to produce unlawful conduct.
  3. Defamation. A written or spoken untruth that damages one’s reputation. Generally, opinion is constitutionally protected. However, the SC held opinion may be actionable if it is sufficiently factual, to be susceptible of being proved true or false by other evidence.

Public officials.

Times v. Sullivan. If plaintiffs are public officials, (politician) or a public figure, (an actor/activist), someone that has injected themselves into the public light. The plaintiff must prove actual malice, a knowing falsity or reckless disregard for the truth.

Private persons.

Gertz v. Welch. A private person need only show negligence for a matter of public concern. Publication is enough. However, if the private plaintiff can prove malice they will be entitled to punitive damages for matters of public concern.

Regulation of unprotected expression.

  1. Obscenity.

Miller v. California. In order for material to be obscene, unprotected and regulated as obscene speech;

  1. The material must appeal to the prurient interests of sex applying contemporary community standard.
  2. Expert evidence is not required to prove obscenity.
  3. Pandering (marketing of obscene material) is relevant in determining the appeal to the prurient interest.

Miller 2.

  1. Material considered obscene must depict sexual conduct in a patently offensive manner.
  2. What is patently offensive is determined by local standards or state law. There is no national standard.
  3. The material must lack serious literary, artistic, political or scientific value under a reasonable persons standard. Pope v. Illinois.
  4. Offensive language.

Cohen v. California. Cohen wore a jacket at a courthouse that read, fuck the draft. Is this obscene speech? No, it’s offensive language that doesn’t satisfy the definition of obscenity under Miller and is therefore protected speech.

Pacifica Foundation. George Carlin monologue, Seven dirty words. A father was riding in his car with his son and heard the Carlin monologue and brought suit. The SC held airwaves can be limited and strict obscenity requirements, the Miller obscenity requirements do not apply to broadcasting. Broadcasting can be restricted even without satisfying Miller. As a result, the FCC can levy fines and restrict broadcasting.

  1. Child pornography. Is clearly outside the protections of the 1st amendment and can be punished and restricted even if it’s not obscene under the Miller standard because states have police powers to protect minor children.

Osborn v. Ohio. States may even criminalize private possession of child pornography in ones home.

  1. Possession of obscene material.

Stanley v. Georgia. Possession of obscene material in the privacy of ones home is protected. However, the manner in getting it there can be restricted or punished. Obscene material can be restricted from being received in the mail and purchased in stores. Stanley does not apply to showing obscene films in pubic theaters. Argument is that all people don’t have the money to purchase a movie. The SC disagreed stating public theaters may restrict the showing of obscene films.

Obscene material may be restricted from being received in the mail and from being purchased in the stores.

  1. Regulation of obscenity through zoning and land use.
    1. Zoning ordinances may be used to restrict speech.

American Mini Theater. Complex time, place, manner ordinance defined what adult theaters and bookstores were and provided that no more than two theaters could exist within a 100 yard radius. Here, the location of adult theatres were being restricted. The Court held it was constitutional because the ordinance did not ban the theaters and bookstores, it just restricted where they could be located.

  1. 21st amendment may be used to regulate adult speech in establishments that are licensed by the state to serve liquor.
  2. Public nudity. The SC held a municipal band on public nudity, which included erotic dancing at adult clubs, was constitutional because of its harmful affect on communities.
  3. Fighting words. Insults that are likely to provoke and ordinary person to commit an act of violence. Back in 1944 if one said, “You’re a damn fascist commie pig,” it would fall into the area of unprotected fighting words and could be restricted.

RAV v. City of St. Paul. A fighting words statute prohibited fighting words, which provoked violence on the basis of race, religion or gender. Is the stature constitutional? No, the statute must be viewpoint neutral. A fighting words statute designed only to punish particular viewpoints, words that provoke on the basis of race, religion or gender is not viewpoint neutral and the statute was stuck down as unconstitutional.

  1. Symbolic speech. Where the medium itself is the message. Free expression consisting of non-verbal actions.

O’Brien. The government placed a prohibition on the burning of the draft cards. During the Vietnam war protesters publicly burned their draft cards and were arrested. The SC held a prohibition of the burning of draft cards required strict scrutiny analysis and was constitutional to further effective functioning of the selective service system. The court held it was the least restrictive means to accomplish its purpose, therefore the case was upheld.

Flag burning is protected symbolic speech. It is unconstitutional to ban flag burning.

Texas v. Johnson. Congress was trying to preserve the American flag as a symbol of national unity. This is regarded as content specific regulation and the court held that this ban on flag burning was directed at preventing the message, strict scrutiny was applied and a compelling state interest was not satisfied.

  1. Freedom of the press is read together with free speech as a single guarantee. The press enjoys no special 1st amendment privilege beyond that afforded an ordinary citizen.

Minneapolis Star Tribune. The newspaper supported the gubernatorial candidate that lost their run for the governor’s seat. The winning candidate decided he was going get back at that newspaper by convincing state legislature to pass a law imposing a print tax on the sale of paper and ink used by newspapers and no other forms of the media.

What is the papers strongest argument?

  1. Equal protection strict scrutiny analysis. The paper would argue that newspapers were being treated differently than other forms of media.
  2. The print tax was designed to suppress free speech, so there is a first amendment argument as well.

MBE: The equal protection rights are incorporated into the 1st amendment argument therefore equal protection review is unnecessary to analyze laws that burden the exercise of 1st amendment rights. Because the substantive guarantees of the 1st amendment itself provide the strongest protection. The equal protection clause is incorporated into the 1st amendment so the best answer is 1st amendment. If it’s an essay talk about both.

Newsroom searches.

Zurcher v. Stanford Daily. During the Vietnam war, buildings were being burnt down, and there were numerous protests in Berkeley. Police entered the newspaper office without a warrant and searched it. The newspaper claimed it had a special 1st amendment privilege that exempted it from constitutional searches and seizures. The SC held there is no privilege against newsroom searches. However, the police did need a warrant and failed to have one. A warrant is required but a newsroom may be searched.

Disclosure of sources.

Brandsburg v. Hayes. May a newsperson claim a privilege to refuse to disclose their sources to a grand jury? There is no newsperson privilege. A newsperson must disclose sources. However, several states have passed shield laws that afford such privileges. How? States can give greater protection than federal laws and they will be upheld.

Closure of criminal trials to the press. The media has a constitutionally protected right to attend trials. However, closure of criminal trials to the press is constitutional, if there is a compelling state interest that is narrowly tailored. (Crossover between criminal law and constitutional law balancing the 6th amendment right to a public trial against the 1st amendment right of access. Judge Davies closed the Rodney King trial to the media and it was upheld.)

  1. Public access to the media. One of the purposes of the 1st amendment is to preserve an uninhibited market place of ideas.
    1. Fairness doctrine.

Red Lion. Government may require broadcasters to provide both sides of an issue because airwaves are limited. However, they need not accept political advertisements.

Newspapers may not be compelled to publish articles or advertisements they do not care to print. Political candidates have no right of access or equal space in a newspaper to reply to personal attacks by a newspaper because unlike cable TV, the print medium is not limited.

  1. Regulation of cable TV. Newspapers and the Internet are protected 1st amendment speech that fall under strict scrutiny analysis. However, regulation of broadcast media, radio and TV are subjected to middle-tier scrutiny because airwaves are limited.

Turner v. FCC. Regulation of cable TV falls under middle tier scrutiny.

Cable TV may ban indecent programming on channels, which are leased to unaffiliated third parties.

Cable TV operators may not ban indecent programming as to public access channels.

Playboy The federal government does not require cable operators who provide sexually explicit material to scramble their signals.

  1. Freedom of association.
  2. 1st amendment right not to speak.

Willie v. Maynard. N.H. license plate words read live free or die. Plaintiff covered the slogan with tape and was criminal prosecuted for defacing a license plate. The SC held the plaintiff may refrain from promoting a viewpoint that they do not accept.

  1. Membership in organizations. Membership to an organization cannot be punished unless a government can show;
    1. The group advocates unlawful conduct.
    2. The individual is both a knowing (scienter) and active member (dues paying) of this group.
    3. The individual must have a specific intent to further the group’s unlawful objective.

Disclosure of membership lists. Disclosure is not required unless the government can make membership in that group illegal. Otherwise, there would be a chilling affect on free association. The court will balance the right to associate against the government interest in regulation.

Loyalty oaths as a precondition to public employment are generally invalid. Two oaths are required:

  1. Support to uphold the constitution.
  2. To oppose the overthrow of the government.

Activity fees. Southworth. State universities may force students to pay activity fees to support campus groups that engaged in speech that students disagree with.

  1. Regulation of commercial speech. Commercial Speech is speech done on behalf of a company with the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product. Generally commercial speech is protected. However, it can be regulated as to false and deceptive advertising, as well as harmful or illegal products. Test for unprotected commercial speech?

Central Hudson test. In order to be valid regulation of unprotected commercial speech the regulation must directly advance a substantial government interest, narrowly tailored to further that interest.

MBE: Advertising of harmful but lawful products, such as vice advertising such as cigarettes, alcohol and gambling, apply the Hudson test.

Forty-Four Liquor Mart v. Rhode Island. There was a state law that banned all advertisements of liquor prices, except for putting price tags on the merchandise itself. The purpose of the law was to decrease alcohol consumption by teenagers. Under the Hudson test, the court held it was not narrowly tailored and was held unconstitutional, as other less restrictive means were available, such as increasing the tax, limiting the per capita amount of purchases, offered educational campaigns in high schools and other things that could have been done other than limiting advertisement of the price to the tags on the bottle itself.

Solicitation. The courts will balance the homeowners right to privacy against the 1st amendment right of commercial speech and then determines whether the regulation is narrowly tailored.

MBE: An ordinance that prohibits all door-to-door solicitation without the homeowners consent. That would be considered a blanket prohibition, overbroad and a prior restraint therefore unconstitutional.

An ordinance that prohibits the business practice of commercial solicitation without the homeowners consent would be upheld. The court said it is no more restrictive than necessary and it left open alternative channels of communication. If the business practice of solicitation was prohibited, those businesses could still advertise by radio, TV and newspapers or put a stamp on it and mail it.

The Supreme Court for many years took the view that commercial speech–speech that proposes an economic transaction–was not protected by the First Amendment.  The Court reasoned that the broad powers of government to regulate commerce must reasonably include the power to regulate speech concerning articles of commerce.

This view changed in the 1970s in a series of cases invalidating state regulations affecting services such as abortion providers and products such drugs.  In Virginia State Board of Pharmacy (1976), for example, the Court struck down a law prohibiting the advertising of prices for prescription drugs.  The Court noted that price information was very important to consumers, and suggested that the First Amendment protects the “right to receive information” as well as the right to speak.  Given the free speech interests at stake, the Court said, the state regulation must support a substantial interest.

City of Cincinnati v Discovery Network is a somewhat atypical commercial speech case.  The case involved a challenge to a local ordinance that for aesthetic reasons banned newsracks for primarily commercial publications such as shoppers and real estate guides.  The Court, 6 to 3, invalidated the law, noting that newsracks containing commercial publications are no uglier than newsracks containing traditional newspapers.  The Court viewed the ordinance as content-based, and applied something close to strict scrutiny.

Four years later in Central Hudson Gas & Electric v Public Service Commission the Court announced a test for evaluating commercial speech regulations that would be used in many subsequent cases.  The Central Hudson test recognizes the constitutionality of regulations restricting advertising that concerns an illegal product or service, or which is deceptive.  For all other restrictions on commercial speech, however, the Court’s test  required that the government show that the regulation directly advances an important interest and is no more restrictive of speech than necessary.

Liquormart v Rhode Island (1996), a decision invalidating a state law prohibiting price advertising of alcohol, is significant in several respects.  First, the Court emphatically rejects the suggestion made in a case a decade earlier that states have greater freedom to restrict advertising related to “vices” than other types of economic activities.  The Court also makes clear that the power to ban a product completely (in this case under the 21st Amendment) does not carry with it the “lesser power” to restrict advertising concerning that product.  Finally, several justices in 44 Liquormart question whether the test for restrictions on non-misleading commercial speech should be the form of intermediate scrutiny suggested in Central Hudson– indicating that they might favor something closer to the strict scrutiny applied to other content regulations of speech.

The Court avoided revisiting the question of the proper test for commercial speech regulations in its 2001 decisions in United States v United Foods and Lorillard Tobacco Co. v Reilly.  The Court in United Foods struck down a law that required mushroom growers to financially support generic mushroom advertising.  The Court concluded that the regulation was an unconstitutional form of compelled speech–enough if commercial speech is entitled to less than full First Amendment protection. In Lorillard, the Court invalidated a series of Massachusetts’s regulations restricting the advertising of tobacco products.

  1. Time, place and manner regulation of speech conduct.
  2. Traditional public forums are areas that are associated with expressive activities. The test that regulates public speech in public forums is:
    1. The regulation must further a significant government interest.
    2. It must be narrowly tailored.
    3. Alternative channels of communication must be available.

Traditional public areas associated with expressive activities are:

  1. Streets.
  2. Parks.
  3. Sidewalks.
  4. Libraries.
  5. Schools.
  6. State fairgrounds.
  7. Non-public forums. The regulation only needs to be viewpoint neutral and rationally related to a legitimate government interest.
    1. Jails.
    2. Military bases.
    3. Inside a courthouse.
    4. Airport terminals.
    5. Government owned office buildings.
    6. Privately owned billboards.
    7. Billboards on city busses.
    8. Private property need not be made available for speech related activities. Private shopping centers don’t have to be made available for speech related activities and owners may prohibit picketing on their property.
    9. Licensing statutes. These are permit requirements prior to speech related activities. Before an individual can give a speech on public property, conduct a march, protest or parade that person needs to obtain a permit. The permit generally will be constitutional provided that it is content neutral, narrowly drawn, non-discriminatory and no unfettered discretion in the licensing official.

Three scenarios apply to permits.

  1. A licensing statute is valid on its face. The statute is content neutral, narrowly drawn, but it is unconstitutional as applied to the speaker. Here, the permit is denied because of the speaker’s particular viewpoint. The SC held the speaker must apply for the permit, refrain from speaking and seek judicial relief before speaking.
  2. A licensing statute is void on its face because the mayor has unfettered discretion to confirm or deny the permit. The licensing statute may be ignored, the individual may speak and doesn’t have to apply for the permit and the individual may successfully defend against any subsequent prosecution.

Example: Martin Luther Kings march on Birmingham. King ignored the licensing statute, didn’t apply for it and successfully defended against prosecution.

  1. Walker v. Birmingham. The speaker has been enjoined from speaking. There has been an injunction issued to prevent the speaker from speaking. The injunction must be obeyed even if it is facially invalid and appeal from it. Invalidity of the injunction must be established on appeal and is no defense in a subsequent charge of contempt.
Advertisements
  1. #1 by Mickie Lombardi on January 7, 2015 - 4:41 am

    Great job!

  2. #2 by John Bijuna on October 18, 2012 - 2:13 pm

    You have studied the subject well.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s