Con Law Outline STEP ONE: IS THE CASE JUSTICIABLE? 1.

Case or Controversy: There must be a case or controversy in order for a federal court to hear a case. This requires standing, a controversy that is ripe, a controversy that is not moot, and a controversy that does not involve political questions. a. Stan in! i. General Standing Rule: A plaintiff must have a concrete sta e in the outcome. !laintiff must sho" in#ury in fact, causation, and redressability 1. $n#ury in %act: ! must sho" a concrete, particulari&ed actual or imminent in#ury. The in#ury need not be economic. a. $f ! is see ing declaratory or in#unctive relief, he must sho" li elihood of future harm '. (ausation: The in#ury must be caused by ) *state or state actor+ and not a third party. ,. Redressability: A decision in !-s favor must be capable of eliminating !-s grievance. ii. (iti&en.Ta/payer Standing.Generali&ed Grievances: 0ot sufficient to constitute standing. 1. 12(1!T$30: Ta/payers have standing to challenge government e/penditures only "here they are challenging a federal statute passed pursuant to the spending.ta/ing po"er A0) they are alleging a violation of the 1stablishment (lause. iii. Third !arty Standing: Generally, third parties cannot assert the claims of others. 4o"ever, a claimant "ith standing may assert the rights of another if the third party other"ise satisfies the #usticiability requirements A0): 1. Special relationship bet"een claimant and third party, or a. 1/: )octor5patient '. The third party "ould have difficulty asserting his or her o"n claims iv. Association.3rgani&ation Standing: Associations have standing "here: 1. 3ne member "ould have standing individually, '. The interests asserted are germane to the purpose of the organi&ation, and ,. 0o individual participation by any member is required (injunctions OK, damages not OK because requires individualized proof) v. 6one of $nterest: 7hen a ! challenges a regulation under a statute, ! must sho" that he is "ithin the class of persons that (ongress intended to protect. b. "i#eness: A ! is not entitled to revie" of a statute or regulation before its enforcement unless ! "ill suffer some harm or threat of immediate harm i. (ourt "ill consider: 1. 4ardship that "ill be suffered if court does not revie" the case, and '. 7hether it there is an adequate record to decide the case. ii. (ourt "ill not determine the constitutionality of a statute that has never been enforced and "here there is no real fear that it ever "ill be c. $ootness: There must be a real live controversy at all stages of revie". $f the matter has already been resolved, the case "ill be dismissed as moot. i. 1/ception: (ontroversies capable of repetition, yet evading revie" *as to this !+ ii. 1/ception: $ssues "here a ) voluntarily stops the offending practice, but is free to resume iii. 1/ception: (lass actions "here claims of some members are still viable d. Politi%al &uestion 'o%trine (PC)"IP* i. The !8) precludes federal courts from hearing entire categories of cases because constitutionally committed to another branch or inherently inapplicable of #udicial resolution. These questions include issues of: 1. President-s conduct of foreign policy

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Congressional requirements for office *age, residency, vote+ "epublican clause of government Impeachment.removal procedures Partisan gerrymandering (drawing election districts to maximize seats) "atification of congressional amendments 03T: =egislative appointment, arbitrary e/clusion of a congressional delegate, production of presidential papers and communications

'. No A visory O#inions: %ederal courts cannot give advisory opinions. There must e/ist a specific present harm or threat of specific future harm. $f a statue has never been enforced, and there is no danger of it being enforced, courts "ill not determine its constitutionality. ,. A e+uate an In e#en ent State ,roun s *S( only+: Supreme (ourt is precluded from hearing cases that have been decided on adequate and independent state grounds, even if federal issues are involved. 7here a case-s outcome is unchanged regardless of the S( decision, the decision "ould be advisory, and is thus not constitutional. a. 1/planation: The S( is precluded from revie"ing a case "here there "as adequate and independent state ground. This doctrine applies "here there "ere t"o independent claims, one state and one federal, and the highest state court finds that the state la" is unconstitutional. Therefore, revie" by the S( of the federal claim "ould not change the result. The S( may hear the case if the state court did not clearly indicate that the decision rests on state la". b. Adequate: State la" grounds are fully dispositive of the case and reversing the federal la" grounds "ill not change the outcome c. $ndependent: )ecision is not based on federal case interpretations of identical federal provisions 9. --t. A/en /ent0Soverei!n I//unity: a. A state cannot be sued in federal courts "ithout its consent. >nder the doctrine of sovereign immunity, a state cannot be sued in state courts absent its consent. i. Applies to actions in "hich the state is named as a party or in "hich the state "ill have to pay retroactive damages 1. The follo"ing can be brought against state officers in federal court: a. Actions to en#oin an officer from future conduct that violates the (onstitution or federal la" b. Actions for damage against an officer personally b. 1/ceptions: i. The prohibition does not e/tend to actions against local governments, actions by the >nited States or other states, or proceedings in ban ruptcy courts. ii. (ongress can remove immunity as to actions created under the %ourteenth Amendment iii. 7aiver is permitted :. A%tions A!ainst State O11i%ers: Allo"ed "here: a. Actions to en#oin officer from future conduct that violates federal la", even if it requires prospective payment by state b. Actions for money damages to be paid out of the officer-s o"n poc ets c. (ongress removes 11A immunity as to actions created under 19A d. 03T "here state "ould pay from state treasury for retroactive damages ;. A2stention a. %ederal courts "ill temporarily abstain from resolving a constitutional claim "here the claim involves unsettled question of state la". b. %ederal courts cannot en#oin pending state criminal proceedings, unless there is proven harassment or prosecution ta en in bad faith. <. "eview o1 State Court 'e%isions: S( can revie" a state court decision if there is a final #udgment, from the highest court, and the revie" is limited to a federal question

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?. 3inal Ju !/ent "ule: S( cannot grant interlocutory revie"@ require final #udgment by state S(, court of appeal, or three5#udge federal district panel *original and e/clusive #urisdiction+ STEP 4: 5HAT A"E THE CATE,O"IES O3 CONSTITUTIONAL LA5 CHALLEN,ES? Se#aration o1 Powers -. JU'ICIAL a. Ori!inal 6uris i%tion: i. The Supreme (ourt has original and #urisdiction in all cases affecting ambassadors, public ministers, consuls, but (ongress has given concurrent #urisdiction to lo"er federal courts 1. The (ourt has original and e/clusive #urisdiction over suits bet"een state governments 2. A##ellate 6uris i%tion: i. The Supreme (ourt has appellate #urisdiction in all case to "hich federal po"er e/tends, sub#ect to congressional e/ceptions and regulation. (ases can come to the (ourt by one of t"o "ays: 1. Writ of certiorari most cases: the Supreme (ourt has complete discretion to hear cases that come to it by certiorari. The cases that come by certiorari are: a. (ases from state courts "here *1+ the constitutionality of a federal statute, federal treaty, or state statute is in issue, or *'+ a state statute allegedly violates federal la" b. All cases from federal courts of appeal !" #ppeal rare cases a. The Supreme (ourt must hear cases that come to it by appeal@ these cases are confined to decisions by three5#udge federal district court panels %. 3ull 3ait. 7 Cre it: i. (ourts in one state must recogni&e #udgments from other states "hen: 1. The court that rendered the #udgment had #urisdiction over the parties and the sub#ect matter, '. The #udgment "as on the merits, and ,. The #udgment is final 4. E8ECUTI9E a. 'o/esti% #owers i. Appointment !o"er: the !resident appoints ambassadors, federal #udges, and officers of the >nited States. The Senate must confirm the appointments. 1. $ongressional %imit: (ongress may vest in the !resident, the courts, or the heads of departments po"er to appoint inferior officers, but may not give itself appointment po"er. ii. Removal !o"er: the !resident can remove high5level, purely e/ecutive officers at "ill 1. $ongressional %imits: a. (ongress can limit *but not prohibit+ removal but only for offices "here independence from !resident is desirable *e.g. independent counsel+ '. &mpeachment and removal: the !resident, the Aice !resident, federal #udges and officers of the >nited States can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors. The 4ouse can impeach by ma#ority vote and the Senate must convict by '., vote for the impeachment to ta e effect and remove a person from office a. 0o e/ecutive pardons from impeachment

iii. !ardon !o"er: the !resident may grant pardons for federal criminal offenses, but not for impeachment or civil contempt. (ongress cannot limit this po"er. iv. Aeto !o"er: if the !resident disapproves of an act of (ongress, the act may still become la" if the veto is overridden by a '., vote of each house 1. 'oc(et veto: the !resent has 1B days to e/ercise the veto po"er. $f he fails to act "ithin that time, the bill is automatically vetoed if (ongress is not in session. $f (ongress is in session the bill automatically becomes la". '. %ine item veto unconstitutional: the veto po"er allo"s the !resident to approve or re#ect a bill in toto@ he cannot cancel part and approve other parts v. !o"er as (hief 1/ecutive: 1. $f the !resident acts "ith the e/press or implied authority of (ongress, his actions are valid '. $f the !resident acts "here (ongress is silent, his action "ill be upheld unless it usurps the po"er of another governmental branch or prevents another branch from carrying out its tas s ,. $f the !resident acts against the e/press "ill if (ongress, his action is invalid *e.g. the !resident has no po"er to refuse to spend appropriated funds "hen (ongress has e/pressly mandated that they be spent+ 2. Power over e:ternal a11airs i. !o"er as (ommander $n (hief: the !resident has broad po"er to send troops to foreign countries, and may do so even in the absence of a declaration of "ar *e.g., to protect >S citi&ens+ ii. %oreign Affairs: the !resident has paramount po"er to represent the >nited States in day5 to5day foreign affairs iii. Treaty po"er: 1. Treaties are agreements bet"een the >nited States and a foreign country that are negotiated by the !resident and are effective "hen ratified by '., of the Senate. Senate consent is not required to void a treaty. '. $onflicts: a. Treaties prevail over conflicting state la"s b. $f a treaty conflicts "ith a federal statute, the one adopted last in time prevails c. $f a treaty conflicts "ith the (onstitution, it is invalid iv. 1/ecutive agreements: 1. An e/ecutive agreement is an agreement bet"een the >nited States and a foreign country and is effective "hen signed by the !resident and the head of the foreign nation. a. 1/ecutive agreements can be used for any purpose and do not require the consent of the Senate '. $onflicts: a. 1/ecutive agreements prevail over conflicting state la"s b. $f an e/ecutive agreement conflicts "ith a federal statute, the federal statute prevails c. $f an e/ecutive agreement conflicts "ith the (onstitution, it is invalid ,. (onstitution C %ederal la" D Treaties *later in time prevails+ C 1/ecutive agreements C State la" %. E:e%utive #rivile!e0i//unity i. 1/ecutive !rivilege: the !resident has a privilege to eep certain communications secret *e.g., for national security+. 12(1!T$30 in criminal proceedings, presidential communications "ill be available to the prosecution "here a need for such information is demonstrated

ii. 1/ecutive $mmunity: the !resident has absolute immunity from civil damages based on any action he too "ithin his official responsibilities. There is no immunity for acts that allegedly occurred before ta ing office. ;. LE,ISLATI9E PO5E" a. 1numerated and implied po"ers: (ongress can e/ercise those po"ers enumerated in the (onstitution plus all au/iliary po"ers necessary and proper to carry out all po"ers vested in the federal government. The source of (ongress- po"ers are as follo"s: i. )ecessar* and 'roper $lause: (ongress has the po"er to ma e all la"s necessary and proper for e/ecuting an e/press or implied po"er granted to any branch of the federal government ii. +numerated 'owers: spending.ta/ing@ admiralty@ commerce@ investigate@ ban ruptcy@ "ar@ coin E@ citi&enship@ property@ patents@ postal F Gost are under Art $ Sec ? e/cept property and investigation iii. ,axing: (ongress has the po"er to ta/ for the general "elfare. A congressional ta/ measure "ill be upheld if it bears some reasonable relationship to revenue production or if (ongress has the po"er to regulate the ta/ed activity. 0either (ongress nor the states may ta/ e/ports to foreign countries. iv. -pending: (ongress may spend for the general "elfare v" $ommerce $lause ." &nterstate commerce a. (ongress has the e/clusive po"er to regulate all foreign and interstate commerce. To be "ithin (ongress- po"er under the (ommerce (lause, a federal la" regulating interstate commerce must either: i. Regulate the channels of interstate commerce *e.g., high"ay+@ ii. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce@ or iii. Regulate activities that have a substantial effect on interstate commerce '. &ntrastate $ommerce *third prong above+ a. +conomic #ctivit*: regulation of an economic or commercial activity is valid if the court can conceive of a rational basis on "hich (ongress could conclude that the activity in the aggregate substantially affects interstate commerce. *e.g., gro"ing "heat for personal consumption+ b. )on/+conomic #ctivit*: regulation of an activity that is noneconomic or noncommercial, cannot be regulated unless (ongress can factually sho" a substantial economic effect on interstate commerce *aggregation.cumulative impact is not possible+. *e.g., possessing a gun in a school &one+ vi. 0eclare War: (ongress has the po"er to declare "ar, raise and support armies, and provide and maintain a navy vii. )o 1eneral 2ederal 'olice 'owers: (ongress has no general police po"er. 4o"ever, (ongress has police5type po"ers over military bases, $ndian reservations, federal lands, and the )istrict of (olumbia *G$=)+ viii. 'ropert* 'ower: (ongress has the po"er to dispose of and ma e rules for territories and other properties of the >nited States *e.g., "ild animals on federal lands, ships and planes, federal buildings+ i/. ,enth #mendment: all po"ers not granted to the federal government, nor prohibited to the states, are reserved to states or the people 1. States have general police po"ers for health, safety, "elfare of citi&ens, natural resources

'. The 1Bth Amendment cannot be used to limit (ongress- (ommerce po"er "here la"s are equally applicable to states and private citi&ens ,. T"o limitations on the 1Bth Amendment: a. (ongress cannot compel state regulatory or legislative action *(ongress can induce state government action by putting strings on grants, so long as the conditions are e/pressly stated and related to the purpose of the spending program+ b. (ongress cannot force state officials to comply "ith federal la" i. (ongress may prohibit harmful commercial activity by state governments /. 19th Amendment: (ongress can prevent or remedy violations of rights arising from the 19th Amendment. Such la"s must be proportionate and congruent to remedy the (onstitutional violations narro"ly tailored to remedy a specific actual harm 1. (ongress cannot create ne" rights b. )elegation of =egislative !o"er: =egislative po"er can be delegated to the e/ecutive or #udicial branches as long as intelligible standards are set and the po"er is not uniquely confined to (ongress. 4o"ever, (ongress cannot delegate po"er to itself or its officers. i. 0ote: no legislative delegation has been invalidated since 1H,; c. $mmunity for federal legislators: federal legislators and aides are immune from conduct that occurs in regular course of federal legislative process d. =egislative Aeto: a legislative veto is an attempt by (ongress to overturn an e/ecutive agency action "ithout bicameralism *passage by both houses+ or presentment to the !resident. 0ot permitted. T.e 3e eral Syste/ 1. Inter!overn/ental I//unities: a. (ongress i. (ongress may sub#ect state and local government activities to regulation or ta/ation if the la" or ta/ applies to both the public sector and private sector ii. A federal ta/ or regulation that is not applicable to private businesses and that merely ta/es or regulates a purely state or local governmental activity may be limited by the 1Bth Amendment 1. 1/ceptions: a. (ongress may restrict state activities that violate civil liberties b. (ongress may prohibit harmful commercial activity by state governments c. (ongress may indirectly regulate states through the spending po"er by imposing conditions on the grant of money *e.g., federal high"ay funds "ill be given only to states "ith a '15year minimum age for drin ing of alcohol+ iii. $ommandeering -tate Officials: (ongress may not require state officials *e.g., the police+ to enforce federal la"s *requires states to regulate its o"n citi&ens+ b. States i. A state may not directly ta/ or regulate a federal government activity unless (ongress consents to the ta/ or regulation 1. >nconstitutional for state ta/ to be paid out of the federal treasury ii. 0ondiscriminatory, indirect ta/es are permissible if they do not unreasonably burden the federal government

State Inter1eren%e 5it. 3e eral Law 1. Su#re/a%y Clause: %ederal la" supersedes conflicting state la" '. Pree/#tion: >nder the Supremacy (lause, federal la" trumps state la" a. 1/press: %ederal la" states it is e/clusive or the po"er is e/clusively federal *coin E, "ar+ b. $mplied i. State la" and federal la" directly conflict and it is not possible to comply "ith both ii. State la" prevents the achievement of a federal ob#ective iii. (ongress clearly intends to occupy the field *e.g. comprehensive federal scheme and agency created to administer+ c. I>T state may prevail if field is traditionally left to states *schools, health, safety, "elfare+ or state sets a higher standard than the federal government ,. 'or/ant Co//er%e Clause JState regulation of commerceK a. $f (ongress has not adopted la"s *remained dormant+ regarding a sub#ect, state or local governments may regulate local aspects of interstate commerce if the regulation: i. )oes not discriminate against out of state competition to benefit local economic interests, and ii. $s not unduly burdensome on interstate commerce b. 0iscriminator* regulations: i. State or local la"s that discriminate against interstate commerce to protect local economic interests, violate the )ormant (ommerce (lause unless the* are necessar* to achieve an important non/economic government purpose and there are no reasonable nondiscriminator* alternatives. *e.g., a state could prohibit importation of live bait fish because parasites could have a detrimental effect on its o"n fish population.+ ii. 1/ceptions: 1. 3ar(et 'articipant +xception: a state may prefer its o"n citi&ens "hen acting as a mar et participant "here the state is buyer, seller, or employer *"atch out for !L$ violationM+ '. 2avoring a %ocal 1overnment +ntit*: the Supreme (ourt applies a more lenient standard "hen a la" favors government action that involves the performance of a traditional government function *such as "aste disposal+. )iscrimination against interstate commerce in such a case is permissible because it is li ely motivated by legitimate ob#ectives rather than by economic protectionism. ,. $ongressional #pproval: in this case, the po"er is no longer dormant c. )ondiscriminator* laws balancing test: i. $f a nondiscriminatory la" *i.e., a la" that treats local and out5of5state interests ali e+ burdens interstate commerce, it "ill be valid unless the burden outweighs the promotion of a legitimate local interest. The court "ill consider "hether less restrictive alternatives are available. *e.g., an $o"a statute banning truc s over ;B feet "as invalid because the state sho"ed no significant evidence of increased safety and the burden on commerce "as substantial+. 9. Privile!es an I//unities Un er Arti%le I9 (Privile!es o1 State Citi<ens.i#*: 0o state can discriminate against citi&ens of other states "here the discrimination relates to civil liberties or to important commercial activities *i.e., the ability to earn a livelihood+. a. E:%e#tion: A la" is valid under the !L$ if the discrimination is necessary to achieve an important government purpose A0) there e/ists no less restrictive alternatives to achieve the goal. i. $n effect, the state must sho" that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem

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b. )oes 03T apply to corporations or aliens c. 1/ample: a statute requiring E',:BB license fee from nonresident commercial fisherman, "hile residents paid E': is invalid discrimination vs. a statute requiring nonresidents to pay E'': license fee, as opposed to E,B residents- fee, for recreational hunting :. Privile!es or I//unities Un er -=A: States may not deny citi&ens the privileges of national citi&enship *i.e. right to interstate travel and the right to vote for federal officers, the right to petition (ongress for redress of grievances+ a. )oes 03T apply to corporations 'or/ant Co//er%e Clause $f discrimination burdens $( and there is no applicable federal legislation, the action is invalid unless: $t furthers an important, non5economic state interest and there are no reasonable non5discriminatory alternatives The state is a mar et participant *i.e. purchaser, seller, or subsidi&er+ $t involves government action regarding the performance of a traditional government function =a" is invalid if the la" burdens $( and the burden out"eighs the state-s interest Nes Privile!es an I//unities Clause o1 Arti%le I9 $f the action denies the out5of5state person important economic interests *i.e. livelihood+ or civil liberties, the la" is invalid unless the state has a substantial #ustification and there are no less restrictive means

State.local action that discriminates against out5of5state entities

State and local action that does 03T discriminate Applies to aliens and corporations

!rivileges and $mmunities does 03T apply 0o

>. States? Power to Ta: Interstate Co//er%e a. (ongress has the %o/#lete po"er to authori&e or forbid state ta/ation that affects interstate commerce. >nless authori&ed by (ongress, state ta/es that discriminate against interstate commerce violate the (ommerce (lause. i. A state ta/ is valid under the (ommerce (lause if: 1. The ta/ does not discriminate against interstate commerce '. There is a substantial ne/us bet"een the activity ta/ed and the ta/ing state *i.e., there must be significant or substantial activity "ithin the ta/ing state+, ,. The ta/ is fairly apportioned, and 9. The ta/ fairly relates to the services or benefits provided by the state ii. 1/amples: Odoing businessP ta/es such as franchises, licenses, occupation ta/, etc. b. Ta/es on the instrumentalities *trains, truc s, etc+ of commerce are ta/able if *1+ there are sufficient contacts "ith the ta/ing state to #ustify the ta/ and *'+ the ta/ is properly apportioned *e.g. on time spent or miles driven in the ta/ing state+ c. Goods can only be ta/ed at beginning and end of #ourney, or if there is a permanent brea in transit. Goods in transit are e/empt from state ta/es.

In ivi ual "i!.ts 1. (onstitutional restrictions on po"er over individuals a. The Iill of Rights *the first 1B Amendments to the (onstitution+ applies directly only to the federal government. i. 4o"ever, the 19A )ue !rocess (lause applies almost all provisions of the Iill of Rights to state and local governments *selective incorporation+ ii. 1/ceptions to incorporation: 1. The 'A right to bear arms '. The ,A right to not have a soldier quartered in a person-s home ,. The :A right to grand #ury indictment in criminal cases 9. The <A right to #ury trial in civil cases :. The ?A right against e/cessive fines b. The (onstitution applies only to government action@ private conduct need not comply "ith the (onstitution i. (ongress, may by statute, may apply constitutional norms to private conduct 1. The 1,A prohibits slavery and involuntary servitude@ a. (ongress can prohibit racially discriminatory action by anyone *the government or a private citi&en+ through the enabling clause '. The 19A prevents states from depriving persons of life, liberty, or property "ithout due process and equal protection of the la"@ a. Section : gives (ongress the po"er to adopt appropriate legislation to enforce the rights and guarantees provided by the 19A. (ongress may not e/pand e/isting constitutional rights or create ne" ones Q it may only enact la"s to prevent or remedy violations of rights already recogni&ed by the courts. i. To adopt a valid la", (ongress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional to solving the identified violation ,. The 1:A prevents both the federal and state governments from denying a citi&en the right to vote on account of race or color 9. >nder the broadly construed commerce po"er, (ongress may prohibit private racial discrimination that has a substantial effect on interstate commerce '. State A%tion A##lies to %lai/s un er 'P@ EPC@ TaAin!@ an -A a. Iecause the (onstitution generally applies only to governmental action, to sho" a constitutional violation, state action must be involved. i. State action may be found "here: 1. The lo%al@ state@ or 1e eral !overn/ent or one of its officers "as the actor@ and '. State action can be found in actions of seemingly private individuals "ho: a. !erform e/clusive #u2li% 1un%tions@ or i. State action e/ists if the private actor performs a public function that is traditionally and almost e/clusively performed by the government b. 4ave si!ni1i%ant state involve/ent i. State action e/ists "herever a state affirmatively facilitates, encourages, or authori&es discrimination by its citi&ens *mere acquiescence in private conduct is not enough+ 1. (ourt are more li ely to find entanglement "here there is race discrimination

,. State action can also be met by %on!ressional statute *e.g., la"s passed under the 1,A enabling clause to ban private racial discrimination, or la"s passed under the (ommerce (lause+
State A%tion Pu2li% 3un%tion Running a to"n (onducting an election >se of peremptory challenges *(%: #ury selection+ Si!ni1i%ant State Involve/ent 1nforcing restrictive covenants through state courts =easing premises to discriminatory restaurant *symbiotic relationship b.c state benefits from discrimination+ Allo"ing state official to act discriminatorily under color of state la" !ublic administration of private discriminatory trust No State A%tion No Pu2li% 3un%tion Running utility company Running a mall 4olding a "arehouseman-s lien sale *traditional, not e/clusive+ No Si!ni1i%ant State Involve/ent =iquor license and providing essential services to private club Government subsidy Gonopoly to utility Granting license to private school !ervasive industry regulation Granting corporation charter and corporate name !ublic defender representing indigent client HHR funding of school "here teacher-s speech "as suppressed *traditional but not e/clusive+ !eremptory challenges *participation by #udge+

;. S#ee%. a. Attac Approach for %reedom of Speech 1ssays i. !rocedural $ssues: 1. 1stablish standing '. State Action ii. ,eneral "ule: T.e -A@ a##li%a2le to t.e states via t.e -=A@ #revents t.e !overn/ent 1ro/ a2ri !in! t.e 1ree o/s o1 s#ee%. an #ress. iii. Try to ma e a facial attac 1. Aagueness.3verbreadth '. !rior Restraint *in#unctions, licensing+ 12(1!T national security reasons ,. >nfettered )iscretion *licensing statute+ iv. As : $s this conduct regulation *symbolic speech+S v. As : $s the speech regulated content specific or content neutralS 1. ! "ill argue (30T10T IAS1): Regulates content a. As : $s the speech protected or unprotectedS i. !rotected *most areas+ necessary to promote ($ *SS in public forums+ ii. >nprotected *lo" value speech+ 0o constitutional protection '. ) "ill argue (30T10T 01>TRA=: Regulates conduct (time, place, manner of speech) Q $S a. !ublic %orum: A !% is government property that govt is constitutionally required to ma e available for speech (par(s, streets, sidewal(s) i. %urther a significant government interest (health, safet*, moral) ii. 0arro"ly tailored *no more restrictive than necessary, but no need to sho" least restrictive means+ iii. =eave open alternative channels of communication b. 0on5!ublic %orum: (militar* bases, airports, areas outside jails4courthouses, sidewal( near postal office, ads on cit* buses) RI c. !rivate %orum: 0o 1st A right to access 0!% for speech

1B

b. ,eneral "ule: The 1A prevents (ongress from abridging the freedoms of speech and press. These prohibitions apply to the states through the 19A. %. $eans o1 3a%ial Atta%A i. Over2rea t.: Statute "hich punishes substantially more protected speech than unprotected speech is facially invalid ii. 9a!ueness: A statute is void for vagueness if it is so unclearly defined that reasonable persons "ould not no" "hat is prohibited chilling effect 1. =a" prohibiting fighting "ords are often void for vagueness iii. Un1ettere 'is%retion: A regulation giving licensing officials unbridled discretion is void on its face. )efined standards are required for licensing. 1. $f no defined standards provided, la" is invalid on its face '. $f some standards are provided but provide unfettered discretion, ! must apply for permit, "ait for denial, then attac . S%o#e o1 S#ee%. i. 0o (ompelled Speech: 1. The freedom to spea includes the freedom not to spea . Thus, government generally cannot require a person to salute a flag or display messages they disagree "ith. '. Gandatory %inancial Support a. Although the government may not compel a person to e/press a message, it may ta/ people and use the revenue to e/press a message "ith "hich they disagree. !eople cannot be compelled to subsidi&e private messages "ith "hich they disagree i. 1/ception: the government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups "hose beliefs are offensive to the student, as long as the program is vie"5point neutral. ii. 1overnment 2unding: (ongress may selectively fund programs that it believes to be in the public interest "hile denying funding to alternative programs. 4o"ever, vie"point restrictions are not allo"ed "hen government funds private speech. iii. Symbolic Speech: Government can regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the government-s purpose 1. (annot prohibit flag burning '. (an prohibit draft card burning, burning cross on private property *if intent to threaten+, nude dancing ,. (an place contribution limits in election campaigns, but not e/penditure limits a. (f: 0o contribution or e/penditure limits on ballot initiatives 9. (an require universities to have military recruiters on campus or face losing federal funding e. As A##lie Atta%A i. (ontent5based restrictions: Gust meet strict scrutiny 1. Sub#ect matter restrictions: Application of la" depends on topic of the message '. Aie"point restriction: Application of la" depends on vie"point of the message ii. (ontent5neutral restrictions: Gust meet intermediate scrutiny iii. (onduct: The government has the po"er to regulate the conduct associated "ith speech, although the breadth of this po"er depends on the classification of the forum. 1. !ublic %orums and )esignated !ublic %orums a. )efinitions

11

i. Pu2li% 1oru/: !ublic property historically open to speech related activities 1. 1/: Streets, side"al s, and par s ii. 'esi!nate #u2li% 1oru/: !ublic property not historically open to speech related activities, but "hich the government has made available for such purposes on a limited or permanent basis b. Standard: Government may regulate speech in public forums and designated public forums "ith restrictions that: i. Are content neutral *if content5based, strict scrutiny applies+ ii. Are narro"ly tailored to serve a significant.important government interest iii. =eave open alternative channels of communication c. &njunctions against speech in a public forum: i. (ontent 0eutral: if the in#unction is content neutral, it must burden no more speech than is necessary to achieve a significant government interest ii. (ontent Iased: if the in#unction is content based, it must be necessary to achieve a compelling government interest '. 0on5!ublic %orums: Government5o"ned forums not traditionally lin ed "ith speech and not held open for speech activities a. Standard: Regulations are valid if: i. Aie"point neutral *no need to be content neutral+ ii. Reasonably related to a legitimate government purpose b. 1/: Gilitary bases, schools in session, government "or places, areas outside prisons and #ails, side"al s on post office property, airports, advertising space on city busses f. Un#rote%te S#ee%.@ 'es#ite "e!ulation Base on Content: )espite the general rule that content based restrictions are sub#ect to strict scrutiny, the courts have carved out several categories of speech "hich are unprotected by the 1A, regardless of "hether they are regulated by content based restrictions. To be valid, restrictions based on content must be narro"ly tailored to achieve a compelling government interest. The government has a compelling interest in the follo"ing categories of Ounprotected speechP: i. In%itin! i//inent lawless a%tion 1. A state cannot forbid advocating the use of force or violation of la" unless such advocacy is: a. )irected as producing or inciting imminent, unla"ful activity, A0) b. =i ely to produce such unla"ful activity ii. 3i!.tin! wor s: Speech falls outside the 1A if it personally abusive "ords that are li ely to incite immediate physical retaliation in an average person 1. %ighting "ords statutes that punish certain vie"points are invalid *i.e. prohibit fighting "ords only about religion+ '. Gerely annoying "ords are insufficient iii. O2s%enity 1. 1A does not e/tend protection to obscene speech. Speech is obscene if it describes or depicts se/ual conduct that, ta en as a "hole: a. Appeals to the prurient interest in se/, using a community standard b. $s patently offensive under community standards c. =ac s serious value *literary, artistic, political, or scientific+ using a national reasonable person standard

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iv.

v.

vi. vii. viii.

'. %and use regulations: a land use *or &oning+ regulation may limit the location or si&e of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such business *e.g., rise in crime rates, drop in property values, etc.+. 4o"ever, regulations may not ban such establishments all together. ,. 'ictures of minors: the government may prohibit the sale or distribution of child pornography even if the material "ould not be found obscene if it didn-t involve children *children must actually be used+ 9. 'rivate possession of obscene material: private possession of obscene material in the home cannot be punished e/cept for possession of child pornography :. Govt may sei&e assets of business convicted of violating obscenity la"s 'e1a/ation 1. 7hen the defamation involves a matter of #u2li% %on%ern, in addition to the common la" elements *defamatory statement, of and concerning !, publication, and damages+, plaintiff must prove 1alsity of the statement and 1ault on the part of the defendant. a. %alsity of the statement i. 1liminates truth as an affirmative defense and shifts the burden of factual accuracy to the plaintiff b. %ault on the part of the defendant:The type of fault that a plaintiff must prove depends on the plaintiff-s status. i. Pu2li% 1i!ure: 1. )efamation cases brought by public officials and public figures require proving /ali%e. Galice is no"ledge that the defamatory statement "as false or rec less disregard as to "hether it "as false. 7here malice is found, damages may be presumed, and punitive damages are allo"ed. '. A person becomes a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy ii. Private 1i!ure: 1. )efamation cases brought by private persons require proving ne!li!en%e. 7here the defendant is negligent, only actual in#ury damages are recoverable *presumed or punitive damages require actual malice+ '. !ure opinion is generally protected I>T may be actionable if it is sufficiently factual to be susceptible of being proved true or false by other evidence 3rau ulent Co//er%ial S#ee%. 1. Truthful commercial speech is protected by the 1A, but it can be sub#ect to significantly more regulation than non5commercial speech. $n determining "hether a restriction on commercial speech is valid, a court first as s "hether the speech concerns la"ful activity and is not misleading or fraudulent. '. All other commercial speech is assessed under intermediate scrutiny and "ill be upheld if: a. the regulation relates to a substantial governmental interest b. the regulation directly advances that interest, and c. the regulation is narro"ly tailored to serve that interest i. no requirement that regulation is the least restrictive alternative True t.reats: 1A does not protect threats carried out "ith intent to intimidate Prison S#ee%.: Regulation upheld if rationally related to legitimate penological interest NOT #ro1ane an in e%ent s#ee%. 1. 1/ception: Speech over public broadcast media

1,

'. 1/ception: Speech in schools g. Prior "estraint: !rior restraint prevents speech before it occurs rather than punishing it after"ards. !rior restraints are highly disfavored and rarely a"arded. The government has a high burden to sho" a special societal harm and that the restraint is narro"ly tailored to achieve significant governmental interest *Strict Scrutiny+ i. To be valid, a prior restraint must include the follo"ing safeguards: 1. Standards must be narro"ly dra"n, reasonable, and definite '. $n#unction must be promptly sought by the restraining body, and ,. !rompt and final determination of the validity of the restraint. ii. 1/amples: 1. $nvalid: Gag order to en#oin media from pretrial publicity in criminal case absent clear and present danger '. Aalid: !rior restraint on ne"spaper not to publish movement of troops during "ar is valid because of national security concerns iii. Li%enses0Per/its 1or S#ee%.: 1. Government can require a license for speech only if: a. There is an important reason for licensing, and b. (lear criteria leaving almost no discretion to the licensing authority '. =icensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and #udicial revie" ,. Ganner of challenging license a. $f statute gives unbridled discretion: (an be attac ed as void on its face. 0o need to apply for a permit and "ait for denial. b. $f statute includes some standards: Gust apply for permit, and "hen denied, can attac . iv. Collateral Bar "ule: !rocedurally proper court orders *in#unctions+ must be complied "ith until vacated or overturned. !arties "ho ignore a court order are barred from later challenging it. >nconstitutionality of a court order is not a defense for contempt. =. 3ree o/ o1 t.e Press a. Generally, the press has no more freedom than that accorded to ordinary citi&ens b. !ublication of Truthful $nformation i. !ress has the right to publish truthful information regarding matter of public concern. (an only be limited if strict scrutiny is met *narro"ly tailored sanction to further interest of the highest order+ ii. $ncludes info obtained illegally, as long as the matter is of public concern and media did not participate in illegality iii. 0o liability for truthful reporting of info obtained from public records iv. 0o liability for broadcast of illegally intercepted call, as long as media did not participate in illegality and it pertains to matter of public concern c. 0e"spaper !rivilege i. There is no privilege to refuse to disclose confidential sources to a grand #ury. State may enact shield la"s to afford such protection. d. Access to (riminal Trials: i. 1A guarantees the public and press access to %ri/inal trials *unless overriding interest Q substantial probability that )-s right to fair trial "ill be pre#udiced and alternatives "ill not "or + 1. Right may be limited "here #udge finds: a. Substantial probability that )-s right to a fair trial "ill be pre#udiced b. (losure "as narro"ly tailored

19

c. 0o less restrictive means "ere available e. %airness )octrine: i. 1A does not require broadcasters to accept political ads. ii. 1/ception: Radio station may be required to offer free broadcasting time to certain individuals *opponents of political candidates or vie"s endorsed by the station@ or persons "ho have been personally attac ed in broadcast+ 1. )oes 03T apply to ne"spapers f. Government 1mployees: Speech by government employees on the #ob in the performance of their duties is 03T protected g. Iroadcast Gedia: !ublic radio and TA may be more closely regulated than other forms of press because of uniquely intrusive nature of medium :. 3ree o/ o1 Asso%iation: *$mplied 1A right+ Strict Scrutiny a. Although the freedom of association is not mentioned e/plicitly in the (onstitution, it is implied from the rights that are e/plicitly noted. The government may neither prohibit politically unpopular groups nor unduly burden a person-s right to belong to such groups i. Stri%t s%rutiny is used to revie" la"s restricting freedom of association: $nfringement may be #ustified by a compelling state interest, unrelated to the suppression of ideas, if the infringement are the least restrictive means of protecting the government interest b. To punish someone based on group membership, the government must prove that the person: i. Actively affiliated "ith the group ii. Tno"ing of its illegal activities, and iii. 7ith the specific intent of furthering those illegal activities c. )isclosure of Gembership =ists: la"s that require disclosure of group membership, "here such disclosure "ould chill association, must meet strict scrutiny d. =oyalty oaths: i. The government may require employees to ta e loyalty oaths, as long as the oaths are not overbroad or vague 1. Overbroad: an oath cannot prohibit membership in the (ommunist !arty or require abstention from advocating overthro" of the government as an abstract idea '. 5ague: an oath requiring employees to support the (onstitution and to oppose the unla"ful overthro" of the government is valid@ but an oath requiring public employees to support the flag is invalid e. =a"s that prohibit a group from discriminating are constitutional unless they interfere "ith *1+ intimate association *e.g., small dinner parties can e/clude+ or *'+ e/pressive activities *e.g., hate groups can e/clude+ ;. TaAin! Clause: >nder the :A, the government may not taAe private property for #u2li% use "ithout 6ust %o/#ensation. The Ta ing (lause applies to the states via the 19A. a. , part test: i" &s there a ta(ing6 1. !ossessory Ta ing: !hysical ta ing.confiscation '. Regulatory Ta ing: Regulation that deprives an o"ner of economic use of his property a. )eprivation of all economic value of land U Ta ing i. 1/ception: 0uisance or property la" independently prohibit the use ii. Temporary denial of all economic use may not be a ta ing b. )eprivation of some economic value i. 0ot a ta ing if they leave some economically viable use of the property

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ii. (ourt "ill consider economic impact of the regulation and "hether the regulation substantially interferes "ith distinct, investment5bac ed e/pectations of the claimant ii" &s the ta(ing for public use6 1. The government may ta e private property only for public use, but this is liberally construed. Government-s ta ing must #ust be rationally related to a legitimate public purpose. iii" &s just compensation paid6 1. !ay property o"ner %GA of property a. )oes not consider value of property to ta er '. Terminate regulation and pay for damages ,. 7orthless property may be the sub#ect of a ta ing, but no compensation is due b. Giscellaneous i. Government conditions on property development must be #ustified by a benefit that is roughly proportionate to the burden imposed, or it "ill constitute a ta ing ii. !roperty o"ner GAN bring challenges to regulations that e/isted at the time the property "as acquired <. 3ree o/ o1 "eli!ion: The 1A prohibition on establishment of religion and its protection of the free e/tercise of religion is applicable to the states through 19A. a. 3ree E:er%ise Clause i. The %ree 1/ercise (lause prohibits government from infringing on religious freedom. The government may only impose a restriction if that restriction is necessary to achieve a compelling government interest *strict scrutiny+. 1. !rohibits government interference "ith religious beliefs '. )oes not prohibit regulation of conduct in furtherance of those beliefs ,. The government can test the sincerity of the religious beliefs, but not the validity or reasonableness of beliefs ii. 7egulations of religious beliefs must meet strict scrutin*: 1. Although the government may deny benefits to or impose a burden on someone based on her religious beliefs if there is a compelling interest, the Supreme (ourt has never found an interest so compelling that it #ustifies such action. iii" 7egulation of conduct 1. The %ree 1/ercise (lause cannot be used to challenge government regulation unless the regulation "as specifically designed to interfere "ith religion *e.g., a specific type of animal slaughter used in a ritual by a particular religious sect is sub#ect to strict scrutiny and unconstitutional+ '. A la" that regulates the conduct of all people can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying "ith the la" *no religious e/emptions are required+ a. 1/ceptions: i. A state cannot refuse to grant unemployment to persons "ho quit their #obs for religious reasons ii. The Amish are e/empted from a la" requiring compulsory school attendance until age 1; b. Esta2lis./ent Clause: The 1stablishment (lause prevents the government from ma ing any la" respecting the establishment of religion. i" -ect preference

1;

1. $f a government regulation or action includes a preference for one religious sect over another, it is invalid unless it is narro"ly tailored to promote a compelling government interest *strict scrutiny+. a. 0ote: it is unli ely that the government could ever have a compelling interest in preferring one religious group. ii. )o sect preference: 1. $f a government regulation or action contains no sect preference, it is valid if it: a. 4as a secular purpose, b. 4as a primary effect that neither advances nor inhibits religion, and c. )oes not produce e/cessive government entanglement "ith religion. iii" 7eligious ceremonies and displa*s 1. 3pening prayer in state legislature paid by state (onstitutional '. 3pening prayer in state court #udge >nconstitutional ,. 0ativity scene "ith Santa and reindeer >nconstitutional 9. Genorah "ith 0ativity (onstitutional *conte/t Q loo as a "hole+ iv" 7eligion and schools 1. Government5sponsored religious activities in schools >nconstitutional '. Government aid to parochial schools "hich cannot be used for religious purposes (onstitutional and must be offered to non parochial schools on the same terms *loan of te/tboo s, busing, computers.soft"are+ ,. Government aid to religious schools for construction and salary supplements (onstitutional at the university levels@ >nconstitutional at the elementary and secondary levels B. "etroa%tive le!islation a. (ontract (lause: i. The (ontract (lause prohibits states from enacting any la" that retroactively impairs contract rights. 1. 0o effect on future Ts '. )oes not apply to federal government ii" 'rivate contracts intermediate scrutin* 1. State legislation that substantially impairs *destruction of all or most rights+ an e/isting private contract is invalid unless the legislation: a. Serves an important public interest, and b. $s a reasonable and narro"ly tailored means of promoting the interest iii" 'ublic contracts stricter scrutin* 1. =egislation that impairs a contract to "hich the state is a party "ill be revie"ed under stricter scrutiny, especially if the legislation reduces the contractual burdens on the state b. 1/ !ost %acto =a"s *applies only to criminal cases+ i. The state or federal government may not pass a la" that retroactively ma es criminal an act that "as innocent "hen done 1. The government may also not prescribe greater punishment for an act than "as prescribed for the act "hen it "as done or reduce the evidence required to convict a person of a crime from "hat "as required "hen the act "as committed. ii. (ongress needs only a rational basis to retroactively impose civil liability e. Iills of Attainder: i. A bills of attainder is a legislative acts that inflicts punishment "ithout a #udicial trial upon individuals "ho are designated either by name or in terms of past conduct@ both the federal and state governments are prohibited from passing bills of attainder

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H. Pro%e ural 'ue Pro%ess: a. The :A, applicable to states via 19A, protects against intentional deprivations of a person-s life, liberty, or property "ithout notice and opportunity to be heard. The deprivation must be intentional and not merely negligent. i. )eprivation of liberty or !roperty 1. Li2erty: )eprivation of liberty occurs "hen there is a loss of significant freedom or denial of freedom provided by the (onstitution or statute a. 4arm to reputation is not harm to liberty b. !risoners rarely have liberty interests '. Pro#erty: )eprivation of property occurs "hen a party has a legitimate claim or entitlement to the benefit under state or federal la", and he is denied that claim or entitlement. a. 1ntitlement U Reasonable e/pectation of continued receipt of a benefit ii. )etermining Required !rocedures *Ialancing Test+ 1. The type and e/tent of required procedures are determined by a three5part balancing test that "eighs: a. The importance of the individual-s interest b. The value of specific procedural safeguards to that interest c. The government interest in fiscal and administrative efficiency b. 3ther $ssues i. !rocedural due process rights may be "aived if the "aiver is voluntary and made no"ingly ii. Government negligence is not sufficient for a deprivation@ there must be intentional or rec less government action for liability to e/ist. 1. $n emergency situations, the government is only liable if its conduct shoc s the conscience iii. The government-s failure to protect people from privatel* inflicted harm is not a violation of due process *unless the government created the danger or the person is physically in government custody+ iv. 1/amples: 1. Iefore an adult can be institutionali&ed, there must be notice and a hearing *e/cept in emergency situations+@ before a child can be institutionali&ed by a parent, there must be screening by a neutral fact5finder '. Iefore a person-s "elfare benefits can be terminated, there must be notice and a hearing ,. 7hen social security disability benefits are terminated, there must be notice, but only needs to be a post5termination hearing 9. 7hen a student is disciplined by a public school, there must be notice of the charges and an opportunity to e/plain *corporal punishment does not required due process+ :. Iefore a parents- custody can be terminated, there must be notice and a hearing ;. !unitive damages require an instruction to the #ury and #udicial revie"@ grossly e/cessive punitive damages violate due process <. An American citi&en detained as an enemy combatant must be accorded due process *subsequent notice and a meaningful opportunity to contest the factual basis or detention before a neutral decision ma er+ ?. 1/cept in e/igent circumstances, pre#udgment attachment and government sei&ure of assets must be proceeded by notice and a hearing *note: the government may sei&e property used in illegal activity even if the property has an innocent o"ner+ H. Government fees must be "aived "hen a fee "ould deny an indigent client of a fundamental right *marry, divorce, appeal termination of parental rights+ 1B. Iefore a driver-s license may be suspended, there must be notice and a hearing

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-C. Su2stantive 'ue Pro%ess v. E+ual Prote%tion a. Ioth substantive due process and equal protection guarantees require the (ourt to revie" the substance of a la" rather than the procedures employed. i. )ue process: the la" limits the liberty of all persons to engage in some activity ii. 1qual protection: the la" treats a person or class of persons differently from others b. Standard of revie" the court "ill apply Q three standards of revie": i" 7ational basis 1. Regulations that do not affect fundamental rights or involve suspect or quasi5 suspect classifications are revie"ed under the rational basis standard '. The la" is upheld if it is rationally related to a legitimate government purpose *any conceivable purpose "ill suffice+ ,. The person challenging the la" has the burden of proof ii" &ntermediate scrutin* 1. Regulations involving quasi5suspect classifications *i.e., gender and legitimacy+ are revie"ed under the intermediate scrutiny standard '. The la" is upheld if it is substantially related to an important government purpose ,. The government has the burden of proof iii" -trict scrutin* 1. Regulations affecting fundamental rights or involving suspect classifications are revie"ed under the strict scrutiny standard '. The la" is upheld if it is necessary to achieve a compelling government purpose. The la" must be the least restrictive alternative. ,. The government has the burden of proof
A##li%a2ility 0on5fundamental rights "ational Basis Inter/e iate S%rutiny Stri%t S%rutiny Suspect classes *race, national origin, alienage+ 0on5suspect classes 0on5quasi5suspect classes 8uasi5suspect classes *gender, legitimacy+ %undamental rights *privacy, travel, voting, 1A+ Stan ar to U#.ol =a" is rationally related to a legitimate government purpose =a" is substantially related to an important government purpose =a" is necessary to achieve a compelling government interest A0) is narro"ly tailored to achieve that end Bur en o1 Proo1 (hallenger

Government

Government

--. 3un a/ental v. Non 3un a/ental "i!.ts a. 0on5%undamental Rights: i. !ractice a trade or profession ii. !hysician5assisted suicide iii. 1ducation iv. 1conomic and social regulation b. %undamental Rights i. "i!.t o1 Priva%y 1. Garriage '. (ontraceptives ,. !rocreation 9. !arental control custody of children

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:. !arental control of upbringing of one-s children ;. 3bscene reading material *in home+ a. (f: 0o fundamental right to sell, purchase, or transport material <. Teeping e/tended family together *does not e/tend to unrelated persons+ ?. $ntimate se/ual conduct *including homose/ual activity+ H. Right to refuse medical treatment a. (ompetent adult has right to refuse medical treatment, even if it is life5saving b. State may require clear and convincing evidence that a person desired treatment terminated c. State may prevent family members from terminating treatment for another d. 03 right to physician5assisted suicide 1B. Abortion *>0)>1 I>R)10+ a. Pre)9ia2ility: States may not prohibit abortion, but may regulate abortion, so long as they do not create an undue burden on the ability to obtain an abortion i. 03T undue burden 1. $nformed consent '. '9 hour "aiting period ,. Requirement that abortions be performed by licensed physician 9. !rohibition of partial birth abortions :. !arental notice and consent la"s for unmarried minors, as long as there e/ists a #udicial bypass ii. >ndue burden 1. Spousal consent and notification la"s b. Post)9ia2ility: States may prohibit abortion unless necessary to protect the "oman-s life or health c. Giscellaneous i. Government has no duty to subsidi&e abortions or provide abortion in public hospitals ii. "i!.t to 9ote 1. Reasonable residency requirements are valid *up to :B days+ '. (onditioning the right to vote on property o"nership is invalid e/cept for in special purpose elections *e.g., "ater storage district+ ,. !oll ta/es are unconstitutional 9. 1arly registration for primaries may be valid *1B months+ or invalid *', months+ :. 3ne person, one vote for all state and local elections a. 1/ceptions: i. At large elections *all voters vote for all offices+ ii. Special purpose elections for officials "ho deal "ith matters of special interest in the community *e.g., "ater storage districts+ ;. Race cannot be the predominant factor in dra"ing the boundaries of voting districts unless the district plan can pass muster under strict scrutiny iii. "i!.t to Bear Ar/s iv. "i!.t to Travel: $ndividuals have the right to migrate from state to state and be treated equally after moving into a ne" state 1. =a"s preventing individual from moving to state: $nvalid '. )urational residency requirements: SS a. 3ne year to receive "elfare benefits: $nvalid b. 3ne year to receive state subsidi&ed medical care: $nvalid c. 3ne year to vote: $nvalid

'B

d. ,B days to vote in state: Aalid e. 3ne year to get divorced: Aalid ,. =a"s restricting international travel: Rational basis only 1'. Su2stantive 'ue Pro%ess: >nder the )ue !rocess (lause of the :A "hich applies to the federal government, or the )ue !rocess (lause of the 19A, "hich applies to state and local governments, the government may not deprive a person of his life, liberty, or property in an arbitrary and capricious manner. 7hen a fundamental right is limited, the la" is evaluated under the strict scrutiny standard. $n all other cases, the rational basis standard is applied -;. E+ual Prote%tion a. >nder the 1qual !rotection (lause of the 19A, "hich applies to state and local governments, and the )ue !rocess (lause of the :A, "hich applies to the federal government, the government is prohibited from depriving anyone of equal protection under the la". $t is impermissible for a state to treat similarly situated persons dissimilarly. i. %undamental right: Strict scrutiny ii. Suspect classification: Strict scrutiny iii. 8uasi5suspect classification: $ntermediate scrutiny iv. All others: Rational basis b. Three 7ays to !rove )iscrimination i. %acially discriminatory statute ii. )iscriminatory application of facially neutral la" 1. Requires a sho"ing of a. )iscriminatory impact b. )iscriminatory intent c. %undamental Rights are sub#ect to strict scrutiny i. See list above d. Suspect (lassifications are sub#ect to strict scrutiny. The government must sho" it has a compelling actual interest and that the means are narro"ly tailored. There must be no less restrictive alternatives to accomplish the interest i. Race and 0ational 3rigin 1. School integration: 3nly invalid if done intentionally '. Ienign discrimination: affirmative action a. Government action that favors racial or ethnic minorities is sub#ect to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities b. The government has a compelling interest in remedying past discrimination if the discrimination "as persistent and readily identifiable *it cannot be used to remedy general past societal discrimination+ c. 1lementary.secondary: diversity is not a sufficiently compelling reason to #ustify using race to assign students to school d. (ollege.university: college admissions officers may consider an applicant-s race in ma ing admissions decisions, but only as a plus among a range of factors to enhance diversity *but quotas are invalid+ ,. Race cannot be the predominant factor in dra"ing up ne" voting districts ii. Alienage *non5>S citi&ens+

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1. 2ederal classifications: because of (ongress- plenary po"er over aliens, federal alienage classifications are not sub#ect to strict scrutiny. Such classifications are valid if they are not arbitrary and capricious '. -tate and local classifications: State and local la"s on alienage are suspect classifications sub#ect to strict scrutiny a. 1/ception: if a la" discriminates against alien participation in state government or non5elective offices involving important public policy, the rational basis standard is used. i. 1/amples: voting, #ury service, police officer, elementary.high school teachers, or probation officer ,. >ndocumented aliens are not a suspect classification. Thus, state la"s regarding them are sub#ect to a rational basis standard. )enial of free education to undocumented alien children is sub#ect to intermediate scrutiny e. 8uasi5Suspect (lassifications i. (lassifications based on legitimacy and gender are Oquasi5suspectP ." 1ender classifications a. Gender classifications are revie"ed under the intermediate scrutiny standard. The government must sho" that gender classifications are substantially related to an important government purpose. 4o"ever, less restrictive alternatives need not be sho"n. The government also has the burden of sho"ing an e/ceedingly persuasive #ustification for the classification. i. Regulations perpetuating stereotypes are li ely to be struc do"n ii. Gender classifications that are designed to remedy past discrimination and differences in opportunity "ill be allo"ed '. Aalid: All5male draft, statutory rape la"s, requiring American fathers to prove their parentage of non5marital children born abroad in order to obtain >S citi&enship for them ,. $nvalid: Gender5based death benefits, gender5based peremptory stri es, alimony for "omen only, state supported all5male or all5female schools, later drin ing age for males ii. =egitimacy 1. =egitimacy classifications are revie"ed under the intermediate scrutiny standard. The government must sho" that legitimacy classifications are substantially related to an important government purpose. f. 3ther classifications i. All other classifications are evaluated under the rational basis standard *e.g., age, disability, "ealth, economic, and se/ual orientation classifications+. The challenger must sho" that the government did not have a conceivable, legitimate interest, or that the means used by the government are not rationally related to the interest. 1. ! "ould argue that the classification should be sub#ect to SS, because similarly to race and alienage, the trait of Jmental handicapK is unchangeable, and the category has been sub#ect to classification in the past

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E+ual Prote%tion (-* 5.at is t.e #ro#er %lassi1i%ation? %acially discriminatory classification %acially neutral la" "ith *a+ discriminatory intent and *'+ discriminatory impact (4* 5.at is t.e a##ro#riate level o1 s%rutiny? Strict Scrutiny $ntermediate Scrutiny %aw must be necessar* to achieve a compelling government purpose Race 0ational origin Alienage )omestic travel Aoting %aw must be substantiall* related to an important government purpose Gender $llegitimacy >ndocumented alien children

Rational Iasis

%aw must be rationall* related to a legitimate government interest Age )isability 7ealth Se/ual orientation Alienage re: self5govt and democratic process (ongressional regulation of aliens All other classifications

(;* 'oes t.is law /eet t.e level o1 s%rutiny? g. 1/am Approach: "hat classifications are thereS 7hat level of scrutiny should be appliedS )oes the la" meet the level of scrutinyS Nou must find more than one classification and more than one level of scrutiny. Iegin "ith the strongest. i. Standing ii. State Action iii. General Rule iv. The state "ill define the right narro"ly *no parental rights from brief e/tramarital affair+ Rational Iasis v. The state "ill assert an VVV govt interest vi. The state "ill argue VVV related vii. ! "ill counter 1. )efine the right broadly *liberty interest to ma e decisions that define "ho ! is@ broad@ father-s interest to have parent5child relationship+ (ourt gives greater protection to matters that are essential to one-s #ersonal i entity SS '. Gorality alone is not a sufficient government interest 5 cannot #ustify criminali&ing private se/ual conduct ,. $ntangible trait 9. =ess restrictive alternatives :. 3ver5inclusive *applies to more people than necessary+ ;. >nder5inclusive *does not apply to all people it should+ viii. Argue due process if la" is unfair . involves a %R i/. )etermine if you can argue procedural due process

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