J u di c i al r e v i e w

- The U.S. Supreme Court has State Action

or iginal jurisdiction over
- (1) cases involving Bar red Suits:
11th Amendment (i) Citizens of one state suing another
ambassadors, public ministers, The 11th Amendment does not bar :
protects states and state in federal court;
or consuls and (i) Actions against local governments
state agencies, NOT (ii) Suits in feder al court against state
- (2) cases in which a state is a (ii) Actions by the US govt or other
local govt officials for violating state law; and
party state governments - The Constitution generally only protects
- Lower federal courts have (iii) Bankr uptcy proceedings that (iii) Citizens suing their own state in
against wrongful conduct by the
concur rent jx over those cases impact state finances federal court.
GOVERNM ENT, not pr ivate per sons.*
except for controversies between - BUT a private actor qualifies as a
two or more states, which are Note: These are subject to exceptions.
government actor when
exclusive to the U.S. Supreme - (1) the private actor performs a
Court. tr aditional gover nment function or
- (2) the government is significantly
UNL ESS that state consents involved in the private actor's activities.
OR the US Congress allows it This exists when the govt:
Sovereign
in order to enforce 14th - has a mutually beneficial
immunity
Amendment rights relationship with the private actor
(e.g., joint venture)
- creates a nexus by affirmatively
(federal immunity from suit in facilitating or authorizing private
state or federal court) Feder al preemption action (e.g., through a police officer
acting under color of law) or
- Suit brought by state, private party, - is pervasively inter twined in the
or foreign government against private actor's management or control.
federal agency or official for actions
federal law premepts inconsistent
taken in official capacity (unless
state law when:
Congress consents)
- (i) Congress intended for federal
- Exception:
- Suit against federal official for law to occupy the field;
- (ii) The state law directly Taxpayer s
actions taken outside official
capacity (congressional consent conflicts with federal law; or
not required) - (iii) The state law indirectly
conflicts with federal law by
creating an obstacle or - federal taxpayers ALWAYS have
fr ustr ating the accomplishment standing to sue to challenge their
Advisor y Opinions of that law's purpose. own per sonal tax liability, but do
NOT to challenge govt
expenditures of the tax money
Federal courts can not render advisory - unless, an establishment of
opinions because federal courts only - Under the Supremacy Clause, a religon challenge to specific
render decisions where an actual case state is required to follow federal congressional appropor iations
or controver sy exists. law when it conflicts with state
law.
- A treaty that is not
self-executing is not treated as
federal law for purposes of the
Supremacy Clause, however,
unless it has been implemented
through legislation.
 J u s t i c i abi l i t y

(1) standing to (2) Ripeness (3) M ootness

sue
- you must show an
immediate threat of - a case that is moot is one that is over r ipe
(3) Redressability harm or an actual harm and dismissed
(the relief requested - Ripeness is an action - an action that is brought too late
(1) I nj ur y (2) Causation - can become moot on trial or appeal
must prevent or that is brought too soon
(the injury must be - exception: cases capable of reptition, yet
redress the injury) - an imminent threat of
caused by the Ds evading review are NOT moot, even tho
an inj ur y can be
violation of a they look like it
enough to make a case
constitutional or other
ripe for litigation.
federal right)

Or ganization has standing if:

- members have standing to sue on their
own behalf Exceptions
- their injuries relate to organization's
purpose AND
- lawsuit does not require member
participation (if damages sought)

Thir d par ty
Adequate and political question
Injured plaintiff has standing when:
I ndependant State
- parties share inextricably close
Grounds
relationship (eg, doctor/patient) AND
- obstacle prevents third party from suing A political question not subj ect
(eg, privacy/retaliation concern) to j udicial review ar ises when:
- The U.S. Supreme Court can
Child choose to review final (i) The Constitution has
Parent has standing unless parental rights state-court decisions by assigned decision making on
have been limited by court OR lawsuit may certiorari unless the decision this subject to a different branch
adversely affect child rests on of the government; or
- adequate (state law fully
Assignor resolves the matter) and (ii) The matter is inherently not
Assignee has standing if assigned legal - independent (no federal one that the judiciary can
claim for ordinary & good faith business precedent used) state grounds. decide.
purpose
 - fed govt is generally immune
from direct state regulation or
l e g i s l at i v e po w e r taxation
- states are NOT immune from
direct federal regulations

Taxing Power
The Commerce Power Spending Power

- right answer whenever congress

- almost anthing can be regulated
imposes a tax even when the tax - spending power includes the power to
as interstate commerce
is used to prohibt the good or spend for the gener al welfare
- congress can regulate
activity in question - gives federal funding on a condition, but
- (1) the channels of interstate
- tax only needs to be r ationally condition needs to be related to the funds
commerce
related to raising revenue - and cannot be coercive
- (2) instr umentalities of
interstate commerce (anti-comandeering)
- (3) intr astate and inter state - e.g. seatbelt law in order to receive
activity (economic or money for highway construction
Direct taxes must be: indirect federal tax (e.g., States can tax federal
commercial) that has a - (1) appor tioned govt affiliates (e.g.,
sales tax) must be:
substantial effect on proportionately contractors) unless
- (1) imposed
interstate commerce among the states - (1) Congress granted
identically in every Anti-commandeer ing
- if economic, can invoke based on each the affiliate immunity,
state where the taxed cannot comandeer state and
aggregation state's population (2) the tax is
goods are found local agencies to implement
and - (i.e., - discr iminator y, or federal programs
- (2) reasonably geogr aphically - (3) the
related to revenue unifor m) and nondiscr iminator y tax
Aggregation production. - (2) reasonably substantially
- Aggregation deals with the "in related to revenue interferes with the
combination with other production affiliate's feder al
activities" part of the rule. - (i.e., no provision pur pose or duties.
- e.g. While one farmer extraneous to tax
growing wheat on his farm purposes).
with no intent to sell to
anyone seems to be an
isolated event, that can
change when combined with
other farmers who share that
same intent. These isolated
events can "in the aggregate"
have a substantial effect on
interstate commerce (or lack
thereof) and be regulated by
Congress.
 Congress can delegate incidental 14th amendment War and Defense Power s
10th Amendment - congress has power to remedy
legislative powers to federal agencies if it 13th amendment 15th amendment - congress can declare war
provides that all powers violations of individual r ights by
provides an intelligible pr inciple to guide congress has broad and maintain the navy
not assigned by the govt, but only as those rights have
the agency? i.e., a clear statement defining power to legislate congress has the and ar my
Constitution to the been defined by the courts
- (1) the policy Congress seeks to against r acial power to ensure - cannot provide for
federal government are - to be properly remedial, must have
advance, discr imination there is no racial military trial of US
reser ved to the states, or "congr uence" and
- (2) the agency to carry out that policy, whether public or discrimination in citizens who are civilians -
to the people. "propor tionality"
and pr ivate voting only US military
- (3) the scope of that agency's - must be a reasonable fit between personnel and enemy
authority. the remidial law and the con law civilians and combatants
right as defined

e x e c u t i v e po w e r

Congressional limits
Presdential Power

- impeachment
- majority of house to impeach,
domestic national and then tried in the senate
- impoundment
- impounding (witholding)
funds not permitted if statute
- power to enforce laws - president is the commander in
requires certain funds to be
- Pardon power for all federal chief and has control over
spent
offenses except in cases of military decisions
- legislative veto
impeachment - cannot declare war, thats for
- veto power within 10 days of congress
poassing of legislation - treatites and executive agrmts
- congress can override by a 2/3 - negotiated by the president but
vote of each house require 2/3 approval of senate immunities
- appointment and removal of - once passed, same authority
executive officers as statute
- senate can reject appmt - President is immune from
liability for official acts but not
for acts pr ior to taking office
- j udges are immune for all
judicial acts, but may be liable
for non-j udicial acts
- legislator s are protected by the
Speech or Debate Clause
- cannot be prosecuted or
punished in relation to their
official acts
 St at e Ac t i o n Dor mant Commerce
14th Amendment
Clause

commercial actor

Pr ivileges and I mmunities Clause Pr ivleges or I mmuntities Clause - In the absence of federal regulation, state regulation
(Ar ticle I V, aka Comity Clause) rarley of commerce is valid so long as there is no
a correct discr imination against out-of-state commerce or an
answer
undue bur den on interstate commerce.
natural persons only - Applies to both out-of-state citizens and
cor por ations (unlike the Comity Clause).
State interferes with its citizens'
rights of NATI ONAL citizenship:
- No state may depr ive a citizen of another - Interstate travel
state the privileges and immunities it - Assemble peacefully
accor ds its own citizens. - Vote for national offices
- prevents a state from treating out-of-state - Enter public lands Discr iminator y L aw NON- Discr iminator y L aw
citizens in a discr iminator y manner - Petition Congress for redress of - Strict Scrutinty: - Undue Burden Test:
grievances - Law furthers legit - burden on commerce
- Protection when in custody of interest and clearly exceeds local
U.S. Marshal - no reasonable benefits
yes
alternative
(1) Discr imination against out-of-state
citizens?
Corporations are not ?citizens? - Applies to states only no yes
no
- the application of this clause is
constituitional
largely limited to cases involving the exceptions:
r ight to inter state tr avel, so it - (i) Necessar y to important state interest and no
(2) Does it impact a fundamental r ight or r arely serves as a basis to declare a other nondiscr iminator y means are available constituitional
essential activity? statute unconstitutional. - (ii) State as a M ar ket Par ticipant
- Private employment (e.g., fee for - state as a buyer or seller
commercial license, residency - (iii) Traditional government function exception
requirements) (e.g., waste disposal)
- Recreational activities not protected (e.g., - (iv) Subsidies
higher fee for hunting license) - (v) Federal Approval
- if congress approves to state regulation of
commerce, does not violate CC even if
(3) Does a substantial reason j ustify the discriminatory
discr imination?
- Nonresidents caused, or are part of, the yes no
problem
- The discrimination is substantially related
to that problem
constituitional unconstituitional

21st Amendment
discr amantor y actions
likly str uck down grants states broad authority to
unless congress regulate the use of alcohol within
consents their borders.
 Taking's Clause
(5th Amendment)

bar s the government from taking private property unless

The Feder al Proper ty - (1) the taking is for a public use and
Clause - (2) the owner receives just compensation? i.e., the
property's fair market value at the time its being taken

Gives Congress the power to dispose (1) physical taking

(2) Regulator y taking
of and make all necessary rules and
by rezoning, prohibiting develeopment, etc.
regulations respecting property of the occurs when the govt (or a
- (1) total taking - regulation leaves no
United States. 3rd party authorized by the
economiclly value viable use of property
govt) per manently and
- (2) par tial taking - regulation affects
Congress may only take property for physically occupies private
some economic use of the land but there is
public use with just compensation. property? regardless of the
still economic value
public interest it may serve.
- (a) economic impact - how much value
was lost
- (b) reasonable expectations of the
owner's return on investment
- (c) char acter of the regulation - does it
impact a few owners or the entire
community

14t h Ame ndme nt Pr o t e c t i o ns

Pr ivleges OR Pr ivleges AND

Equal Protection Due Process
immunities immunities

discriminatory
substantive procedur al prevents a state from
treatment of interference with
treating out-of-state
similar y situated rights of national
citizens in a
people citizenship
discriminatory
deprivation of life, manner
liberty or property deprivation of life,
without adequate liberty, or property
justification without adequate
process
discriminatory
treatment of all people
 pr o c e du r al du e pr o c e s s

Right to notice and a hear ing

(1) is life, liber ty, or (2) if yes, what process

proper ty being taken? is due?

Students
Public Employees

- public colleges and

universities need to provide - Public employees have a protected property
notice and a meaningful
right in their employment if:
opportunity to be heard before
- ongoing employment contr act,
dismissing a student for - can only be fired for cause, or
disciplinar y reasons.
- receive assur ances of continued employment. - When a public employee can only be
- does not require a meaningful
- Employees entitled to: fired for cause, PDP requires employee
opportunity to be heard when a - i.e., notice and a hearing? if the government
student is dismissed for receive
seeks to discharge them. - (1) notice of any alleged misconduct,
academic reasons.
- (2) a pre-ter mination hear ing to
respond to the allegation, and
- (3) a post-ter mination evidentiar y
hear ing

s u bs t ant i v e du e pr o c e s s

- if a law denies a
fundemental right to
ever yone = violates due I nter mediate Rational Basis
process Str ict Scr utinity
- if a law denies a
Scr utinty
fundemental right to only
some = violates EPC
- The law must be necessar y to achieve a - The law must be substantially
compelling gover nmental interest. - A law is r ationally related to a
related to an impor tant
- govt bears burden of proof legitimate state interest.
governmental interest.
- least restrictive means - the challenger bears the burden of
- govt bears burden of proof
- applies when: proof
- applies to:
- suspect classification - ver y easy for govt to pass
- legitimacy and
strict scrutiny will be used - fundemental r ight - applies to all other cases (a residual test)
- gender
when a state law prohibits
the exercise of a
fundamental r ight based on triggers SS under
an individual's wealth. both due process and
equal protection
 Fu ndame nt al r i g ht s

Voting and Ballot Second

Tr avel Pr ivacy
Access Amendment Right
to Bear Ar ms

- fundemental right to inter state - M ar r iage

tr avel - voting is a - substantial interference with a marriage is
- some states can impose fundemental right to unconstituitional
reasonable residency everyone over 18 - Contr aceptive The test is historical -
requirments for political - poll taxes are - fundemental right to purchase contraceptives firearm regulation are valid
particpation and govt benefits unconstiuitional - Sexual intimacy only if they fit the history
- most are 30-90 days - can be SS or RB - govt has no legitimate interest in regulating of the 2nd Amendment
- one year is too long except for non-commerical sexual intimacy
in-state tuition and Jx for - Abor tion
divorce - Constituition does not confer a right to abortion - state
- Non-Discr iminator y:
- Discr iminator y: supreme courts can decide whether this is a fundemental
- Voter registristion - Not an unlimited right.
- Poll tax right for their people
- Photo ID reqmt - Lawful regulations:
- dissallowing 3rd - Parental Rights
- Disallowing write-in - imposing conditions and
party candidacies - right to raise children as they see fit
voting qualifications on the
- property-ownership - Family Relations
- A state or local law commercial sale of arms
reqmt - right to live together w close relatives
that limits the right to - prohibitions on
- Obscene M ater ial
vote in a governmental - (i) concealed weapons,
- Refusal of M edical Treatment
unit's election to its - (ii) possession of firearms
residents. by felons and the mentally
ill, and
Strict Scrutinty - (iii) carrying guns in
schools, government
Rational Basis buildings, etc.
review

Elections Clause
Felon's Voting - Under the elections clause, state
legislatures have the power to
14th Amendment enact laws that regulate the time,
permits states to place, and manner of
prohibit congressional elections (e.g., by
felons? even those establishing voting sites).
released from - Also grants Congress the power
prison? from voting to over r ide those state laws with
in elections. federal law.
 e q u al pr o t e c t i o n c l au s e

Was the govt action discriminatory? no EPC

(i.e. does it treat similary situated persons no
analysis
differently?)

default Yes

- M ust show:
- Discriminatory intent and
Rational Basis
impact for SS review
- if just disperate impact = exceptions
rational basis

- challenger must show:

- (1) law is not r ationally
related to a govt action substantially impacts:
- (2) legitimate state
interest
- applies to all other rights
and classifications
govt - (e.g. age and wealth)
ussually
Suspect Classifications:
wins - Race
Fundamental Right Quasi-Suspect
- voting Classification
- Ethnicity
- interstate travel - sex/gender or
- National origin
- privacy - legitimacy (status as a
- If the classification is by
- 1st amendment right nonmarital child)
state law, citizenship status

yes yes yes

Str ict Scr utnity inter mediate scr utinity

The law must be the necessar y to achieve a

compelling gover nmental interest. law must be substantially related
- govt bears burden of proof tough to an impor tant governmental
- least restrictive means interest.
test
middle
test
 1st Amendment f r e e do m o f s pe e c h
protects Speech
and r ight NOT to
speak

Protected Speech Less Protected Unprotected Speech

Content-Based Restr ictions Content-Neutr al Restr ictions Commer ical Speech

- 1. Obscenity
- (a) sexual arousement
- (b) sexual conduct in a offensive way
Content neutral regulations must protected comerical speech - (c) and lacks serious literary or artistic value
- presumptively invalid and upheld - (1) advance impor tant interests may be prohibited
only if they survive str ict scr utiny: can be regulated if: - 2. I ncitement to violence
unrelated to the suppression of if false,
- (1) if the government proves that the - 1. Serves a substantial - (a) imminent lawless action and
speech; AND misleading, or
restriction is necessar y and government interest; - (b) words are likley to incite such action
- (2) not burden substantially unlawful
- (2) nar rowly tailored to achieve a - 2. Directly advances that - 3. Fighting wor ds
more speeech greater than interest; AND - likley to incite an imminent breach of peach
- (3) compelling government interest. neccessar y
- e.g. political speech - 3. Is nar rowly tailored to - 4. Defamation
serve that interest. no 1st
amendment
intermediate scrutinty review
Strict Scrutinty Review (no greater than necessary)

Restr iction on the time,

place, or manner of speech

Expressive Conduct
The govt has power to regulate the conduct associated with
speech, although the breadth of this power depends on
whether the forum involved is a public or nonpublic forum.

- regulation valid if:

- (ii) it furthers an
Tr aditional Public For um Designated Public For um Non-Public For um
impor tant govt interest;
- (iii) The govt interest is
unrelated to the
suppression of ideas; and historically used for speech not historically used for speech
- (iv) The bur den on related activities but has been e.g. a govt office, school, jail, airport, military base, etc.
related activities
speech is no greater than opened for such use - The regulation must be:
e.g. sidewalks, streets, parks
necessar y. - e.g. a subway station - (1) Viewpoint-neutr al ;
- e.g. burning a flag - (2) Reasonably related to a legitimate governmental
interest.
- govt can regulate the content, but not the viewpoint
- content-based regulations are subject to SS - (no war speech is allowed here)
- content-neutr al regulation must be:
- (1) Be nar rowly tailored
- (2) serve a significant state interest; and
- (3) Leave open ample alter native channels for
communication of the information.
 Media
Freedom of Association

- The government can interfere with the First

Amendment freedom of association by The First Amendment shields the media from
punishing persons who: liability for publishing tr uthful information that
- (1) are active members of a subversive was unlawfully obtained by a third party if
organization, - (1) the info involves a matter of public
- (2) know of the organization's illegal concern and
objectives, and - (2) the publisher neither obtained it
- (3) specifically intend to further those unlawfully nor knows who did.
objectives

Other I ssues
Public Employee Speech

- Over breadth - When a public employee is speaking

- a statute that regulates more speech than pursuant to official duties, the govt has
necessary to protect a compelling govt great latitude to regulate that speech.
interest - But when speaking as a pr ivate citizen,
- Vagueness the government can restrict that speech
- a statute that fails to provide a reason of only if its interest in efficient government
ordinary intelligence with fair notice of what function outweighs the employee's right to
is prohibted free speech.
- Pr ior restr aints
- prohibits speech before it occurs.
- govt needs to show
- avoid a particular harm
- must have procedural safegaurds in place
 f r e e do m o f r e l i g o n

establishment clause free exercise clause minister ial

exception

- prohibts govt from

- establishing a religon, - The minister ial exception protects religious
- guarantees the freedom to believe in any
- prefer r ing a particular religon over organizations from civil liability for employment
religion or no religion at all.
another, or discr imination when they hire or fire employees
- prohibits govt inter ference with or
- prefer r ing religon over non-religon who serve in ministerial roles
discrimination against sincere religious
- if facially religous preference shown, SS - (e.g., a school teacher providing religious
beliefs or conduct.
applies instruction).*
- the govt may determine whether a
- a statute might have the effect of - But this exception does not protect ministerial
professed religious belief is sincere? but
favoring religon, but thats okay as long employees from cr iminal liability for fr aud.
not whether that belief is reasonable or
as there is individual choice true.
* The exception operates as an affir mative
defense to an otherwise cognizable
employment-discrimination claim.
- e.g. The govt can provide indirect funding
to religious institutions if the funding Belief Conduct
program comports with historical practices
and understandings of the establishment
clause
- i.e., when funding flows to religious
- a person's belief is - laws that intentionally target a
schools through individual choice, not
absolutley protected religon's conduct are subject to
government.
- a person's belief must SS
be genuine - laws that are gener ally
applicable but happen to
impact religon, are subject to
r ational basis review
 Ex po s t f ac t o c l au s e s

Prohibit retroactive criminal laws that:

- criminalize previously legal conduct
- impose greater punishment than previously
prescribed
- eliminate previously available defenses
- decrease prosecution's previous bur den of
proof

does not apply to civil - Laws that retroactively impair an

laws because their purpose or dinar y r ight? e.g., the right to
is nonpunitive raise the statute of limitations as a
defense? can be challenged on
substantive due process grounds.
- Such laws are reviewed under
rational basis scrutiny and are
generally constitutional.
But a civil law also will be
deemed to be an ex post
facto law when its
retroactive effect is so
punitive that it clear ly
over r ides the law's
nonpunitive purpose.