Separation of Powers 1: Judicial Power (Constitutional and self-imposed limitations on exercise of federal jurisdiction: policy of strict necessity)
No advisory opinion:
The courts will never render advisory opinions
They decide cases.
Ripeness
It requires harm or immediate threat of harm
When On MBE, if they give a clear. unconstitutional statute, always look for ripeness, mootness answer.
Mootness:
A real, live controversy must exist at all stages of review, not merely when the complaint is filed.
If not, dismissal will always be ordered.
It if becomes moot on appeal, the case will be vacated.
Exceptions
Capable of repetition but evading review.
The issue has a time limit
Class actions
A class representative may continue a suit even.
Standing
A person has standing only if she can demonstrate that she has a stake in the outcome.
Components:
Injury
Virtually anything can amount to injury especially if Congress says so,
It does not have to be economic.
Causation
Redressability
If the injury is past, it is redressed by damage.
If it is future, it is redressed by an injunction.
Standing to enforce govt. statutes: zone of interests.
Standing of organizations
If the members have standing ( this is the only one constitutionally required)
If their injury is related to the purpose of the organization
There is not reason to require the presence of the individuals in the lawsuit.
Standing to assert right of others
A plaintiff may assert third-party rights where he himself has suffered injury; and
Third party find it difficult to assert their own rights; or
The injury suffered by the plaintiff adversely affects his relationship with the third parties.
Tax-payer standing:
General rule:
No standing to litigate govt. expenditures
There is no link between revenue and appropriation
They can attack for their own bill.
Exception:
Measures under taxing and spending power that violate establishment clause.
Legislators standing:
They have standing to challenge acts that affect them personally
Ex: exclusion from the legislature or not being allowed voting.
They have no standing to challenge properly enacted statutes simply because they may be unconstitutional.
Adequate and independent state grounds
Definition:
The USSC will only cases from state courts only if the state court judgment turned on federal grounds.
The court will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision
Adequate
That means that the federal issue will not change the outcome of the case, state law was fully dispositive of the case
Independent:
If the state law interpretation is based on federal case law interpreting an identical federal statute, then it is not independent.
Remember:
Federal constitutional rights are a floor not a ceiling.
A state can give more rights that the US Constitution requires.
When basis is unclear:
The USSC may either:
Dismiss the case.
Remand it to the state court for clarification.
Abstention
Unsettled state law
When a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay the case to give the state courts time to decide.
Pending state proceeding
General rule:
Federal courts will not enjoin pending state court proceeding
Exception
An order enjoining state proceedings will be issued in cases of proven harassment or prosecutions taken in bad faith.
Political questions
Definition
The issues are committed by the Constitution to another branch of govt.
Those inherently incapable of resolution and enforcement by the judicial process.
Ex:
The republican form of govt.
True foreign or military command decisions
It belongs to the president as commander in chief.
Seating of delegates at a national convention
Impeachment procedures
11th Amendment limits on federal courts
what is barred
actions against state govt. for damages;
actions against state govt. for injunctive or declaratory relief where the state is named as a party;
actions against state govt. officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership; and
Actions against state govt. officers for violating state law.
What is not barred:
Actions against local govt.
Actions by the US govt. or other State govt.
Actions in state courts
Exceptions
Certain actions against state officers
For injunctions
Monetary damages from officers
§1983
for prospective payments from state
state may consent to be sued in federal court
If you sue the state in another's state, there is no 11th amendment issue.
Congress may expressly authorize actions against states concerning 14th amendment rights.
Separation of powers II: Legislative power
Enumeration
Taxing power
Any tax to raise revenue
Needs only geographical uniformity for indirect taxes.
Direct taxes: must be apportioned.
Export taxes are not permitted
Taxes are generally valid
Spending power
For any public purpose
Commerce clause
Congress can regulate almost anything
It can regulate intra-state activity if it has a substantial effect on interstate commerce
It is judged in the aggregate.
Anti-commandeering principle:
Congress cannot force states to adopt or enforce regulatory programs
However,
It can have federal agents to it instead
The state can consent to do it
Bribe the state through its spending power
Other powers:
Over federal property, federal mail, power to declare war, sign treaties, bankruptcy power ( nonexclusive)
Power over citizenship
Admiralty power
Power to coin money
Patent and copyright law
13th Amendment:
abolished slavery
It can enforce any action to remedy it.
14th Amendment:
it can remedy any violation of individual rights as those rights have been defined by the courts
a necessary and proper clause:
it is in addition to another power
promote the general welfare
it is not a power:
never a right answer
delegation
It is ok so long as Congress gives a clear standard to apply.
The speech and debate clause
Senators and representatives can never be prosecuted for an official act
Introducing a bill;
Voting a bill
Speech in an official proceeding
Congressional veto of executive actions invalid
It authorizes Congress to override executive action by simple resolution.
A resolution is not a statute; thus the president cannot veto it.
Separation of powers III: executive power
It is vested in the President.
Domestic powers:
Appointment and removal of officers
Advice and consent of senate:
Ambassadors, public ministers and consuls, justices and other officers of the US.
No appointment by Congress
Removal
By case law, the president probably can remove high, level, purely executive officers
Pardon:
Except in cases of impeachment
Veto power
Congress may override veto by two-third vote
President has ten days to veto
The bill is automatically vetoed if Congress is not in session
Pocket veto.
Line item veto unconstitutional
Veto applies to the entire bill. President cannot veto only part of it.
Power as chief executive:
Over internal affairs unclear:
If the Pdt. Acts within the express or implied authority of Congress, his authority is at its maximum
If the Pdt acts where Congress is silent, his action is valid as long as it does not usurp the power of another branch or prevent another branch from carrying out its task.
If the Pdt acts against the express will of Congress, he has little authority and his action likely is invalid.
Power of external affairs
War
Actual hostilities
Under his commander in chief power
It can start actions without Congress declaring war.
Foreign relations
The pdt's power to represent and act for the US in day-to-day foreign relations is paramount.
He can make treaties
He can make executive agreements.
Treaty power
Two-third of the senators present has to concur.
Supreme law
Any state law or action contrary to a treaty are invalid
it has to be self-executing
executive agreements
they can be probably on anything as long as they do not violated the Constitution
They prevail over state law.
The PDT has the power to enter into executive agreements to settle claims over US citizens.
Executive privilege /immunity
Executive privilege
It is an inherent privilege
Extent of the privilege
Presidential documents and conversations are presumptively but it yields to materials needed in a criminal case.
Executive immunity
Absolute immunity for president
From civil damages within his official responsibilities.
No immunity for acts before being a president.
Immunity may extend to presidential aides.
Impeachment
The president, vice-president, and all civil officers if the US is subject to impeachment.
Treason, bribery, high crimes and misdemeanors
A majority vote in the house to invoke the charges
A two-thirds vote in the Senate to convict.
The federal system I: relatives sphere of federal and state power
Exclusive federal powers
Inherent federal powers
On MBE, do not allow states to take actions that might touch upon foreign affairs.
Exclusive state powers
10th Amendment:
All powers not delegated to federal govt. belong to the states.
Concurrent federal and state power: Supremacy Clause
Federal law has supremacy over state laws.
Conflicting federal and state:
Federal supersedes state.
State prevents achievement of federal objective
That is enough. Federal will prevail
Preemption
If Congress intended to occupy the entire field:
Precludes any actions by states
It is preempted only if conflicting with federal law.
Absence of federal and state powers
Interstate compact clause
States can enter agreement with other states with congressional consent.
Not all need congressional consent though.
Only those that increases the political power.
Full faith and credit clause
If
The court that rendered the judgment had jurisdiction over the parties and subject matter;
The judgement was rendered on the merits: and
The judgement is final.
The federal system II: intersovereign litigation
Suits by the US against a state
The state does not need to consent
Original jurisdiction with the supreme court
Suits state against the US:
The US must consent
Federal officer as defendant
Limitation
Deemed to be brought against the US if the judgement would result in taking money from the treasury.
Specific relief against individual officer
If acted ultra vires
Suits by one state against another
No consent needed
Exclusive jurisdiction of USSC.
Suits against state in another's state court
Possible
The federal system III: intergovernmental tax and regulation immunities
Federal taxation and regulation of state or local govt.
Tax or regulation applying to state and private entities: valid
Won't be stuck down on 19th amendment ground
Tax or regulation that applies to state only
Congress may not compel states to enact statutes.
Exception 1: civil rights
May use its power under the 14th and 15th amendment.
Exception 2: spending power conditions
State taxation and regulation of federal govt.
No direct tax or federal instrumentalities
Can't do that against the federal govt.
Nondiscriminatory indirect taxes
Are valid if they do not unreasonably burden the federal govt.
State regulation of federal govt.
Unless congress consents.
The federal system IV: privilege and immunities clause
Article 4: privilege of state citizenship:
It prohibits discrimination against out of state citizens.
Corporations and aliens are not protected.
Only fundamental rights are protected
Commercial activities
Civil liberties
Substantial justification exception
Against non residents may be valid if the state has a substantial justification for the different treatment
Must show that the non resident are part of the problem
And there is no less restrictive means to solve the problem.
14th Amendment: privileges of national citizenship
NEVER the right answer.
State regulation or taxation of commerce I: regulation of foreign commerce
Lies exclusively with Congress.
Minor exceptions where state regulation permitted.
Port pilotage and navigation of ships.
State regulation or taxation of commerce II: regulation of interstate commerce.
Regulation of commerce by Congress
Plenary and pervasive
Power of Congress to supersede or preempt state regulation
Supremacy clause
Power of Congress to permit or prohibit state regulation
The state may generally not discriminate against interstate commerce.
Congress may allow states to adopt legislation that would otherwise violate the commerce clause.
State regulation of commerce in the absence of congressional action: the dormant clause
If Congress has not regulate, state and local governments may regulate if:
It does not discriminate against out-of-state competition to benefit local economic interests; and
Is not unduly burdensome
Discriminatory regulations
Regulations protecting local business
Will be held invalid
Regulations requiring local operations
If the state law requires a business to perform specific business operation in the state to engage in other business activity within the state, it will be held invalid
Regulations limiting access to in-state products
Regulations prohibiting out-of-state wastes
May not prohibit private landfill or waste disposal facilities from accepting out-of-state garbage or waste or surcharge such waste
Exceptions
Necessary to important interest
Valid if it furthers an important non-economic state interest; and
There are no reasonable alternative available
State as market participant.
The Commerce Clause does not prohibit a state to prefer its own citizens when it is acting as a market participant
Limitation 1: interstate Privileges and Immunities Clause
There is no market participant exception to that clause
A regulation that interferes with the private sector may violate the Privileges and Immunities clause.
Limitation 2: downstream restrictions:
It may not attach conditions to a sale that would discriminate against interstate commerce.
Nondiscriminatory laws: balancing test:
It will be held invalid if:
The burden on interstate commerce outweighs the promotion of legitimate local interests.
Less restrictive means:
The court will sometimes consider if they are less restrictive means.
Absence of conflict with other states
Upheld if no chance of conflict with other states.
21st Amendment: state control over intoxicating liquor
intrastate regulations
the commerce clause prohibits outright economic favoritism for local businesses and attempts to regulate out-of-state transactions
interstate regulations
transitory liquor is subject to the commerce clause
conflicts between state liquor laws and individuals rights
general rule
individual rights are paramount
excessive drinkers
They are entitled to procedural due process before the state can post their names in liquor stores.
Equal protection clause
No age minimum based on gender
Federal power
It can regulate i.e.: antitrust law power.
State regulation or taxation of commerce III: power of states to tax interstate commerce
General considerations:
If Congress has not acted, look to see if:
Tax discriminates against interstate commerce;
If it does, it is invalid.
If it doesn't:
Whether the burden on interstate commerce outweighs the benefit to the state. Three tests must be met
There must be a substantial nexus between the taxpayer and the state;
The tax must be fairly be apportioned; and
There must be a fair relationship between the tax and the services or benefits provided by the state.
Discriminatory taxes
They can violate:
Commerce clause
The privileges and immunities clause
Equal protection clause if it is not rationally related to a legitimate state purpose.
Finding discrimination
Taxes singling out interstate commerce
Are considered not discriminatory if
The particular statutory section or scheme also imposes the type of tax on local commerce.
Tax with in-state subsidy
If they are earmarked for subsidies to in-state businesses.
Choosing the proper clause
The commerce clause is not always the strongest argument to get it invalid
Interstate privileges and immunities clause
If the regulation discriminates against a natural person who is a non-resident, the strongest argument is this clause.
Equal protection
Where Congress approves the discrimination
Congress can give powers to states that would violate the commerce clause,
But it cannot give power to violate the Equal protection clause
Taxes based on suspect classifications or infringing on fundamental rights
Ex:
Exemptions to long time residents.
Nondiscriminatory taxes
Factors
Substantial nexus
It is more than minimum contacts under due process clause
It requires significant or substantial activity within the taxing state.
Fair apportionment:
It is has to be fairly apportioned according to a rational formula.
The taxpayer has the burden of proof to show unfair apportionment.
Equal protection clause
If it not fairly apportioned, it may also violate the equal protection clause.
Fair relationship
If fairly related to the services or benefits provided by the state.
Use tax:
Permissible in buyer's state
So long as the use tax is not higher than the sales tax.
Credit for sales tax paid in seller's state
If the sale is consummated outside the state and is subjected there to a sales tax, a use tax by buyer's state must give credit for the sales tax.
State may force the seller to collect use tax
If the seller has the substantial nexus required by the commerce clause
Drummers sufficient.
Mail solicitation insufficient.
Sales taxes
Sales tax by seller's state
Sales consummated within the state
There is a substantial nexus
Sales made to a buyer outside the state
The tax will not be invalid for lack of substantial nexus because of the relationship between the seller and the state
But all were found to violate the commerce clause because none were fairly apportioned.
Sales by buyer's state
Tax permitted if seller has substantial contacts
Drummers insufficient
Tax on telephone calls:
May impose if:
One of the parties to the telephone call was in the taxing state;
The call is charged to an address billed within the taxing state or paid within the taxing state; and
The state tax minimizes the chance of a single call being subject to multiple state taxes by granting some form of credit against its tax for taxes paid to another state.
Ad valorem property taxes:
Goods in transit are totally exempt from taxation
No tax on commodities in the course of interstate commerce
When is it in the course of interstate commerce?
It begins when the goods are delivered to an interstate carrier or
The cargo actually starts its interstate journey
Severance taxes are permissible
Effect of break in transit
It does not destroy the interstate character of the shipment unless:
The break was intended to end or suspend the shipment
When does it end?
It ends when it reaches its destination
Then the goods are subject to a local tax.
No apportionment required.
Tax on instrumentalities used to transport goods interstate
The validity depends on:
Whether the instrumentality has acquired a taxable situs in the taxing state; and
Since the physical situs of instrumentalities may change from state to state during the year, whether the value of the instrumentality has been properly apportioned according to the amount of contacts with each taxing state.
Taxable situs:
Property receiving benefits or protection from taxing state
It has taxable situs.
May be more than one taxable situs
Requires apportionment
Exception to ships in international waters: "home-port doctrine"
No taxation by any other state but the where the ship is domiciled.
Apportionment requirement
If the instrumentality has only one situs, the state can tax for the full value
If not, need fair apportionment upon average physical presence.
Proper apportionment:
Miles traveled is okay.
Computing the average number of instrumentalities physically present in the taxing state on anyone day during the tax year and taxing that portion at full value.
Improper apportionment
The formula must be rational.
Domiciliary state can tax full value unless taxpayers prove taxable situs elsewhere: he must prove either
That the instrumentalities were permanently located in some other state; or
That they were habitually employed in interstate commerce in some other state or states, thus acquiring a taxable situs outside the domiciliary state.
Tax on value of entire interstate enterprise:
A state may tax the business as whole.
It must be apportioned.
Privilege, license, franchise, or occupation taxes:
General rule
They are permitted
On companies exclusively engaged in interstate commerce
The tax must meet the basic requirements
Substantial nexus
Fairly apportioned
Not discriminate against interstate commerce
Fairly related to the services or benefits provided by the state.
Taxpayer has burden of proof.
Flat license on drummers prohibited
Taxes on interstate carriers
In general
To compensate for the use of the state's roads.
Flat taxes
Invalid unless
The state grants out-of-state carriers a credit against the flat tax for license fees paid to other states; or
The particular flat tax is nondiscriminatory and a reasonable charge for the use of the roads and administrative difficulties make the collection of a more carefully apportioned tax impracticable.
Taxes on interstate passengers
Does not violate the commerce clause or the equal protection clause or the right to travel as long as:
The amount of the tax is based on some fair approximation of use and is not excessive in comparison with the govt. benefit conferred; and
The tax does not discriminate against interstate commerce.
Net income taxes:
May impose fairly apportioned, nondiscriminatory net income taxes on interstate firms that conduct business within its borders.
Adequate contacts
Fair apportionment
Three-factor formula:
Ratio of property
Ratio of payroll,
Sales within the state
Single-factor formula
Ration of sales within state to taxpayer's total sales.
Income includible in tax base
Value added tax:
It must not discriminate against interstate commerce;
It must tax an activity with substantial nexus to the state;
Must be fairly apportioned.
Be fairly related to the services or benefits provided by the taxing states.
State regulation or taxation of commerce IV: power of states to tax foreign commerce
import-export clause
state taxation of imports prohibited absent congressional consent
Nondiscriminatory ad valorem property taxes on goods in state are permitted.
Inspection fees for imports and exports
Permitted if absolutely necessary
State taxation of exports prohibited:
After they have entered the stream of exports.
Commerce clause:
Congress has the exclusive power to regulate foreign commerce and inherently limits states' power to tax that commerce.
A state may not impose an ad valorem property tax on instrumentalities that are foreign owned and used exclusively in international commerce.
A state may impose a fairly apportioned sales tax on a lease of domestically owned cargo containers that will be used in foreign commerce.
Income tax: apportioned share of unitary business income
Individual guarantees against govt. or private action I: limitations on power and state action requirement.
Constitutional restrictions on power over individuals
Bill of rights:
Rights applicable to the states:
All the first amendment guarantees, the 4th amendment, some elements of the 5th, the 6th, and the 8th.
Rights not applicable to the states:
Second amendment
Grand jury clause of the 5th
7th amendment.
13th amendment:
no slavery shall exist
no requirement of state action
it is applicable to private action
congressional power
Power to adopt appropriate legislation.
14th Amendment
It prohibits states from depriving any person of life, liberty or property without due process and equal protection of the law.
Requirement of state action
Action by state or local govt.
Congressional power
It enables Congress to tae appropriate legislation to enforce the amendment.
Limitation
It gives only power to remedy violation.
It does not give Congress power to establish what constitutes a violation.
15th amendment
It is a limitation on both states and federal govt.
It prohibits them from denying any citizen the right to vote on account of race or color.
Commerce clause
Congress can adopt legislation that bars private racial discrimination in activities connected with interstate commerce
Civil rights act
Extent of commerce clause
Any business open to interstate commerce is concerned.
Rights of national citizenship
State action requirement
It is usually necessary to attribute the action to the state.
It can found in the actions of seemingly private individuals who:
Perform exclusive public function; or
Have significant state involvement in their activities.
Exclusive public functions:
Some activities are so traditionally the exclusive prerogative of the state that they constitute state action even when undertaken by a private individual or organization.
Significant state involvement: facilitating private action
Whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens
Official encouragement:
Judicial approval
Official acts
Discriminatory law enforcement
Apparent legal authority
If the state put the actor in the position to commit the unconstitutional act.
Public defenders
He does not act for the state when he represents an indigent.
State authorization
The court invalidated a provision that repealed all existing laws banning discrimination in the sale or lease of property.
The state as lessor for a racially discriminatory lessee
Paid for with public funds.
No govt. duty to protect individuals from harm by private individuals:
Exception:
If the govt. or its employees enter into an agreement or conspiracy with private person to cause harm to victim, the victim's injuries are the result of state action.
Individual guarantees against gvtal. or private action II: retroactive legislation:
Contract clause: impairment of contract.
It prohibits states from enacting any law that retroactively impairs contract rights.
Not applicable to federal govt.
Only applicable to state legislation.
Basic impairment rules
Private contracts
It prevents only substantial impairments
In determining if the legislation is invalid:
Does the legislation substantially impair a party's rights under an existing contract?
If it does, it is only valid if
It serves an important and legitimate public interest; and
It is reasonable and narrowly tailored means of promoting that interest.
Public contracts: stricter scrutiny.
The same basic test is applied but more scrutiny is applied.
No substantial impairment if the state reserves the right to revoke, alter, or amend
Ex post facto laws:
It is legislation that retroactively alters the criminal law as to offenses or punishments in a substantial prejudicial manner.
Procedural changes that do not affect substantive elements are not ex post facto.
Bills of attainder
It is legislation that imposes punishment without a judicial trial.
Two requirements preclude finding a bill of attainder
These provisions require both judicial machinery for trial and punishment of crime and definition of criminal conduct in such general terms as not to ensnare within the definition a single individual or small group for punishment because of past behavior.
Due process considerations
Under both 5th and 14th, it may be a violation of the Constitution but not necessarily
It has to be a substantive due process issue
I.e.: fundamental right.
Individual guarantees against gvtal or private action III: procedural due process.
The 5th and the 14th amendment provide that both the states and the govt. shall not take a person's life, liberty or property without due process of law.
When is it required
When the state acts to deprive someone of life, liberty or property
Intentional deprivation vs. negligent deprivation
Only for intentional deprivation
Protection vs. creation
Protection, not creation
Is life, liberty or property being taken?
Due process protects rights not privileges
Liberty
Loses significant freedom of action; or
Is denied a freedom provided by the Constitution or a statute.
Ex:
Commitment to mental institution
Adults are entitled to an adversary hearing
Clear and convincing evidence is required
Minor children
Screening by a neutral fact-finder.
Injury to reputation:
NOT a deprivation of liberty by itself.
Deprivation if
Lost significant employment or association opportunities.
Exercise of fundamental constitutional rights
Due process applies to it.
Application: govt. employee's freedom of speech.
A public employee may not be discharged for engaging in constitutionally protected speech.
Property
There must be a legitimate claim or entitlement to the benefit under state or federal law.
When attendance is required, there is a property right to education.
Welfare benefits if she had met the criteria before.
Continued public employment only if tenured.
For cause only.
What type of process is required
It varies under the circumstances.
The court will weigh:
The importance of the individual interest involved;
The value of the specific procedural safeguards to that interest; and
The govt. interest in fiscal and administrative efficiency.
Welfare benefits
Evidentiary hearing prior to termination of them.
Timely and adequate notice
Disability benefits
NO prior evidentiary hearing is required as long as there is prior notice and an opportunity to respond in writing and a subsequent evidentiary hearing.
Public employment
Only for cause
Notice of charges
Pre-termination opportunity to respond to those charges
Need only a subsequent evidentiary hearing
Public education: disciplinary suspension
Notice of the charges and opportunity to explain
Creditors' remedies
I.e.: attachment,
Need notice and hearing prior to the issuance of the order
Unless
The creditor posts a security
The application is made to a judge, is not conclusory, and documents narrowly confined facts susceptible of summary judgment; and
Provision is made for an early hearing at which creditor must show probable cause.
Driver's license
Prior hearing
Parental status litigation and hearing
Termination of parental status
No requirement of appointment of counsel unless
When fundamental fairness requires the appointment.
Paternity actions:
Preponderance of the evidence.
Due process requires the state to pay for blood tests that might exculpate an indigent defendant in a paternity suit if the state is responsible for the lawsuit.
Hearings for men who seek to establish paternity:
Unmarried father living with mother
It will be protected by due process.
Father who never tried to establish paternity
A father who never tried to establish a relationship with the child has no right
Mother married to another man.
Husband presumed to be father.
Treatment of patients in mental health care facilities
Have a liberty interest in reasonably safe conditions and treatment.
Notice of adversary proceedings
When state seeks to take or terminate a liberty interest, it must give notice
Limitations of attorney's fees for veterans benefit hearings
Upheld.
Civil forfeitures
Due process applies.
Due process rights are subject to waiver
Access to courts: indigent plaintiffs.
Fundamental rights:
Waiver required.
Non-fundamental rights:
Waiver NOT required.
Individual guarantees against gvtal or private action IV: the taking clause
The 5th amendment
It prohibits the govt. taking of private property for public use without just compensation
It is applicable to the states through the 14th amendment.
It is NOT a grant of power.
Public use limitation liberally construed
Taking vs. regulation
It need not compensate for mere regulation of property.
Actual appropriation or physical occupation:
A taking will almost be found if
There is actual appropriation or destruction of a person's property or a permanent physical invasion by the govt. or by authorization of law.
Exception: emergencies.
No taking.
Use restriction:
Denial of all economical value of land = taking:
It will be equivalent to a physical appropriation.
Decreasing economic value: balancing test.
No taking as long they leave an economically viable use for the property.
The court balances:
The social goals to be promoted;
The diminution in value to the owner; and
The owner's reasonable expectation
Generally, it will be a taking if it unjustly reduces the economic value of the property.
Zoning ordinance:
Local govts. can do that pursuant to their police power as long as
They substantially advance legitimate state interests and do not extinguish a fundamental attribute of ownership.
Building/development permits: transfer of occupation rights.
Such conditions constitute an uncompensated taking unless the govt. can show that
the condition relates to a legitimate govt. interest; and
The adverse impact of the proposed building/dvpt on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights.
Remedy
The govt. will either be required to
Pay the property owner compensation for the taking; or
Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect.
Just compensation
The owner is entitled to the reasonable value of her property at the time of the taking:
Fair market value.
Individual guarantees against govt. or private action V: Introduction to substantive due process and equal protection:
Relationship between substantive due process and equal protection:
Due process:
When the law applies to everyone
Equal protection:
When the law applies to a category of persons.
What standard of review will the court apply?
Strict scrutiny
When a suspect or a fundamental right is involved.
Test:
Only if it necessary to achieve a compelling or overriding interest
.
Intermediate scrutiny
When classification is based on gender or legitimacy.
Test
If it is a substantially related to an important govt. interest
.
Rationally basis test:
In all other cases, this test applies/
Test:
If it is rationally related to a legitimate interest.
Burden of proof on the challenger.
Deference to the legislature.
Individual guarantees against govt. or private action VI: Substantive due process.
Constitutional sources
The due process of the 5th amendment
Fed govt.
The due process of the 14th amendment
States.
Applicable standards
Strict scrutiny
Fundamental rights:
Right to travel; privacy; voting; and all first amendment rights
All other cases: mere rationality.
A few irrebutable presumptions may be invalid.
If the govt. presume facts against a person so that she is not qualified for some important benefit or right, the irrebutable presumption may be unconstitutional.
Individual guarantees against govt. or private action VII: Equal protection:
It has no counterpart that applies to the federal govt. it is limited to state action.
However, you get to the same result though the substantive due process clause of the 5th amendment.
Applicable standards:
If a suspect classification or a fundament right is involved:
Strict scrutiny applies
If a quasi-classification is involved:
Intermediate scrutiny applies
If other classification is involved:
Rational basis test applies
Proving discriminatory classification:
Facial discrimination
Facial discrimination absent racial language
The law cannot be explained except in racial terms
Discriminatory application
If the persons challenging the govt. action can prove that the govt. officials applying the law had a discriminatory purpose, the law will be invalid.
Discriminatory motive:
Only if the court finds that the law-making body enacted or maintained the law for a discriminatory purpose.
Suspect classifications:
Race and national origin:
Strict scrutiny applies.
School integration
Only intentional discrimination will be invalid.
Remedying intentional school segregation
Busing:
It must be tailored to eliminate proven discrimination
Limitation: interdistrict busing.
Only if both schools had discriminate
Limitation: voter initiatives:
Citizens can vote to prohibit judges to order busing, however they cannot prohibit the transfer of students to other attendance zones if such transfers are allowed for other reasons.
Order limited:
It is limited to remedy past discrimination, nothing more.
Termination of order
When the order has eliminated the vestiges of discrimination, the federal court must terminate the order.
Benign govt. discrimination: affirmative action
Govt. action that favors racial or ethnic minorities is subject to strict scrutiny, as is govt. action discriminating against racial or ethnic minorities.
Remedying past discrimination:
The govt. has a compelling interest in remedying past discrimination.
A court may employ a race conscious remedy tailored to end the discrimination and eliminate its effects.
When there has been no past discrimination by govt.:
Even if there was no past discrimination, a state may have a compelling interest in implementing affirmative action.
Must be narrowly tailored to that purpose.
Remedial justifications:
Local private discrimination:
There is no compelling interest in remedying the general effects of societal discrimination.
Diversity in public education
The govt. appears to have a compelling interest in promoting racial diversity in public school student bodies and faculties.
However, this interest will not support a program that attempts to achieve or maintain a mathematical balance in student bodies or faculties.
Discriminatory legislative apportionment:
Race can be considered but it cannot be the dominant factor.
The plan will violated the equal protection clause unless
The govt. can show that the plan is narrowly tailored to serve a compelling interest.
Private affirmative action:
On MBE:
If ask if private action is valid, the answer cannot be based on the equal protection clause.
It has to be 14th or 13th amendment answer.
Alienage classification
Federal classifications
Not subject to strict scrutiny apparently.
State and local classifications
Subject to strict scrutiny
Exception: participation in self-govt. process
The rational basis test applies.
Undocumented aliens
Punitive laws against illegal alien adults
They are not a suspect classification.
Quasi-suspect classification
Intermediate scrutiny test:
The action is invalid unless it is substantially related to an important govt. interest.
Gender
The govt. bears the burden of proof.
An exceedingly persuasive justification must be shown
.
Intentional discrimination against women
Usually invalid because the govt. will fail to show the exceedingly persuasive justification.
Govt. interest must be genuine
It cannot rely on overbroad generalizations
Affirmative action benefiting women
Only to remedy past discrimination
Intentional discrimination against men.
Invalid:
Denial to admit males to nursing schools, law that provides only wives are eligible for alimony, law that permits unwed mother but not unwed father to stop adoption of offspring, law providing a higher minimum drinking age for men.
Valid:
Statutory rape, draft registration.
Legitimacy classifications:
Must be substantially related to an important govt. objective:
No punitive purpose
The court will look at the purpose.
Inheritance from father
An illegitimate child must inherit the same way a legitimate child inherits.
Immigration preference to legitimate children is permissible
Other classifications:
All other classifications are reviewed under the rational basis test.
They will be upheld unless they bear no rational relationship to any conceivable legitimate govt. interest.
Age not suspect.
Wealth not suspect
The court has upheld the govt. refusal to pay for abortion.
Education
It has not yet been upheld as a fundamental right.
Individual guarantees against govt. or private action VIII: Fundamental rights:
Applicable standard:
Strict scrutiny either in equal protection case ( not to everyone) or substantive due process ( everyone)
The govt. action must be necessary to protect a compelling interest
.: the law is narrowly tailored to promote an overriding, compelling interest.
Right of privacy:
Marriage
Special test in prisoners' rights case:
Upheld if reasonably related to a legitimate penological interests.
Use of contraceptive
Abortion
Pre-viability rule: no undue burdens allowed.
Spousal consent is undue burden.
Post-viability rule:
The govt. may prohibit abortion unless women's health threatened.
No obligation to finance abortion on part of the govt.
Obscene material
In your home except child pornography.
Keeping extended family together.
Right to educate children
Right to vote
Restrictions on right to vote:
Relatively short residency requirements restricting the right to vote are valid.
Based on property prohibited
Poll taxes are prohibited by the 24th amendment
Primary elections:
State election of party primaries
State may exercise some control.
Dilution of right to vote
One person, one vote principle
The equal protection has been interpreted as prohibiting vote dilution.
Congressional elections: almost exactly equal.
State and local elections: variance not unjustifiably large
Scope:
Applies to almost all elections.
Exception 1: appointed officials and officials elected at large
Exception 2: special purpose govt. units ( water storage districts).
Gerrymandering
Racial gerrymandering
Race cannot be the predominate factor in drawing districts.
Political gerrymandering
Unconstitutional
Multi-member district
It is allowed.
Candidates and campaigns:
Candidate qualification
Fee must not preclude indigents as candidates
Restrictions on ability of person to be a candidate:
Sliding scale of scrutiny.
It can violate either the 1st amendment, the right to political association or the equal protection clause of the 14th amendment.
Campaign funding, contributions, and expenditures
Govt. may allocate more funds to the two major parties
Extraordinary majorities: referendum elections
Permissible.
Absentee ballots
No duty to provide for it.
Right to travel
Interstate travel:
Nature of the right:
Fundamental right but not every restrictions is invalid
Standard of review
Durational residency requirements are subject to strict scrutiny.
Distinctions between old and new residents
Rational basis test applies.
International travel
It appears to be protected from arbitrary federal interference by the due process clause of the 5th amendment.
Right to refuse medical treatment:
It is protected by the 5th and 14th amendments but not yet declared a fundamental right.
A mentally competent adult may refuse lifesaving treatment.
1st amendment freedoms I: freedom of speech and assembly.
General principles
Content vs. conduct:
Content
It is presumptively unconstitutional for the govt. to place burdens on speech because of its content.
The govt. must show that
the regulation is necessary to serve a compelling interest, and
it is narrowly drawn to achieve that end.
Exception:
Unprotected categories of speech
Obscenity, defamation, fighting words.
Content-neutral speech regulations
It is only subject to intermediate scrutiny.
Upheld if the govt. can show:
They advance important interests unrelated to the suppression of speech, and
They do not burden substantially more speech than necessary to further those interests.
Conduct
Time, place and manner regulations.
Reasonableness of regulation
Overbroad regulation is invalid
Vague regulations invalid: void for vagueness doctrine
If a law fails to give persons reasonable notice as to what is prohibited, it violates the due process clause.
Cannot give officials unfettered discretion:
There must be some defined standards for the officials to make the decision.
Unlimited discretion: void on its face.
Statutes valid on their face:
The speaker must seek a permit.
Scope of speech:
Includes freedom not to speak.
State can require shopping center to permit persons to exercise speech rights.
Includes symbolic speech
The court will uphold a conduct regulation if:
The regulation is within the constitutional power of the govt.;
It furthers an important govt. interest;
The govt. interest is unrelated to suppression of speech; and
The incidental burden on speech is no greater than necessary.
Time, place and manner regulations: regulations of conduct.
Public forums:
Streets, sidewalks, and parks.
Test: the regulation must be:
Content neutral;
Narrowly tailored to serve a significant interest; and
Leave open alternative channels of communication.
Ex 1: residential areas:
Targeted picketing:
Uphold an ordinance banning it in front of one residential area.
Charitable solicitations:
Reasonable regulation.
Injunctions:
Content based:
Only if it is necessary to achieve a compelling interest
.
Content neutral:
Only if it burdens no more speech than necessary to achieve a significant govt. purpose
.
Non public forums:
Test: they are upheld if:
Viewpoint neutral; and
Reasonably related to a legitimate govt. purpose.
Significant cases:
Military bases are not public forums.
Schools either.
Postal service property
Signs on public property
Airport terminals
It is not reasonable to ban leafletting within multipurpose terminals having qualities similar to a shopping mall.
Unprotected speech: regulation or punishment because of content
A clear and present danger of imminent lawless action: the advocacy
Is directed to producing or inciting lawless action, and
Is likely to produce or incite such action
Fighting words
States may ban words likely to incite physical retaliation.
Statutes regulating fighting words ten to be overbroad or vague
They are usually void.
Statutes cannot be content based: limits hate crime legislation
Obscenity:
Taken as a whole, by the average person, applying contemporary community standards:
Appeals to the prurient interest in sex:
Portrays sex in a patently offensive way; and
Does not have serious literary, artistic, political, or scientific value - using a reasonable person standard, rather than the contemporary community standard
Zoning is okay if it
Is designed to promote legitimate local interests; and
It does not prohibit all such entertainment in the community.
Defamatory speech ( see in torts):
False advertising: commercial speech
First:
Determine whether the commercial speech concerns a lawful activity and is not misleading or fraudulent
Second, the statute will be valid if it:
Serves a substantial govt. interest;
Directly advances the asserted interest; and
It narrowly tailored to serve the substantial interest.
Reasonable fit between the legislation's end and the means chosen.
Prior restraints
Uphold it if some special harm would enthuse.
Sufficiency of govt. interest
National security
Preserving fair trial
Contractual agreement to restrain.
Military circumstances
Procedural safeguards:
The standards must be narrowly drawn, reasonable and definite;
If the restraining body wishes to restrain dissemination of an item, it must promptly seek an injunction; and
There must be a prompt and final judicial determination of the validity of the restraint.
Adversary hearing usually required.
Freedom of the press:
It has no greater freedom than anyone else.
Access to trials:
Compelling interest in protecting children:
After a finding is necessary to protect the child in the individual case.
First amendment II: freedom of association and belief
Nature of the right:
The right to associate for expressive purposes is not absolute.
It can be justified by compelling interests, unrelated to the suppression of ideas, that cannot be achieved through means significant less restrictive of associational freedoms.
Electoral process:
Balancing test:
If the restriction of 1st amendment activities is severe, it will be upheld only if it narrowly tailored to achieve a compelling interest.
But if the restriction is reasonable and nondiscriminatory, it will generally be upheld on the basis of the states' important regulatory interests.
Ballot regulation
Signature requirements are valid.
Primary voting regulations
The state can require that a person is a member of the party to be elected.
Party regulation:
Less interest in regulating this.
Limits on contribution:
To political candidate
Valid
To ballot referendum committee:
Not valid
Limits on expenditure:
Limiting persons or groups :Are invalid
Corporations
Valid
1st amendment III: freedom of religion:
free exercise clause
no punishment of beliefs
What constitutes religious belief?
No need of traditional religion.
Religious oaths for govt. jobs prohibited.
No punishment of religious conduct solely because it is religious.
States can regulate general conduct: criminal laws and other regulations
Generally no exemptions required.
Unemployment cases:
Some exemptions required.
Right of Amish not to educate children:
Yes.
Establishment clause:
Sect preference:
Invalid unless:
It is narrowly tailored to promote a compelling interest.
No sect preference:
Valid if
Has secular purpose;
Has a primary effect that neither advances nor inhibits religion; and
Does not produce excessive govt. entanglement with religion
Cases unconnected to financial aid or education:
A good rule of thumb is the law is generally invalid
Cases involving financial benefits to church related institutions:
