Professional Documents
Culture Documents
Con Law Outline
Con Law Outline
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i. Ex. law criminalizing distribution of contraceptives to
unmarried persons. Doctor allowed to raise rights of
unmarried persons.
c. An Organization may sue for its members, if: (aka
association standing)
i. Members would have standing to sue in their own
right
ii. Interests are related to the organizations purpose
1. i.e. Sierra Club can bring an environmental
claim.
iii. Individual member participation is NOT required
(i.e. no individual damages requested - injunction)
v. No generalized grievances – P must NOT be suing solely as a citizen
or taxpayer interested in having the government follow the law.
1. Exception: taxpayers have standing to challenge government
expenditures as pursuant to federal statutes as violating the
Establishment Clause (i.e. Federal aid to religious schools)
a. NOTE – For a taxpayer to have standing under this
exception, Congress’s spending power must be involved.
2. Exception: P has standing to enforce a federal statute if she is
within the “zone of interests” congress meant to protect.
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c. MOOTNESS – A live controversy must exist at ALL stages of litigation. If
the matter has already been resolved, the case will be dismissed as moot.
i. Exceptions
1. Capable of repetition but evading review (Roe v. Wade-
pregnancy)
2. Voluntary cessation – D halts offending practice but is free to
resume at any time
3. Class action suits – As long as one member of the class has
ongoing injury
ii. Ex. Parties die, events occur or lapse, change in law
c. Final Judgment Rule – Only hears cases after final judgment from the
highest state court, a US Court of Appeals, or a three-judge federal district
court. (Must be a “case or controversy.”)
i. In other words, generally NO interlocutory review
d. State Law Grounds – The Supreme Court will hear State Cases regarding the
constitutionality of a federal statute, or whether a State Statute violates
a federal law.
i. The Supreme Court will NOT hear the case if reversal of the federal
law ground will NOT change the result because of a companion state
law ground. (Can’t overrule state law decisions)
ii. MBE: Residents file injunction under state and federal environmental
law. The State Supreme Court holds both violate, the Supreme Court
cannot review, because reversal of fed law would not change the
outcome.
4. ABSTENTION
a. Federal courts may NOT enjoin pending State Court proceedings except
in cases of proven harassment OR prosecutions taken in bad faith.
b. Necessary and Proper Clause – Congress has the power to make ALL laws
necessary and proper (appropriate) for executing ANY power granted to
ANY branch of the federal government.
i. The necessary and proper clause standing alone cannot support
federal law. It must work in conjunction with another federal power.
c. Taxing and Spending Power – Congress may tax and spend for the
general welfare
i. Taxing – Must raise some revenue
ii. Spending – Spending may be for ANY public purpose.
iii. Limited – Although the taxing and spending powers are broad, they
are sill limited by all other constitutional provisions.
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iv. MBE: If the answer states general welfare, then must be tax and
spending or police power
e. War and Treaty Powers – Congress has the power to declare war, raise and
support armies, and provide for and maintain an army.
i. Remedy the Effects – Economic Regulations during war and in the post
war period to remedy the affects of war have been upheld.
f. Power to Coin Money – Congress has the power to coin money and fix
weights and measures.
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g. Power Over Citizenship – Congress may establish uniform rules of
naturalization. This gives congress plenary powers over aliens.
j. Delegation of Powers
i. Legislative powers MAY be delegated so long as “intelligible
standards” are set.
1. Generally Congress may Delegate ANY Legislative Power (no
limit exists on Congress’ ability to delegate legislative power)
2. Exceptions – Powers uniquely confined in Congress (declare war,
impeachment)
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3. MBE Tip: Fed law is unconstitutional because it is in excess of
delegation of legislative powers is usually wrong.
ii. Legislative Vetos and Line-item Vetos are ALWAYS Unconstitutional
1. Congress MUST use:
a. Bicameralism – passage by both the House and Senate,
AND
b. Presentment – Presenting the bill to the president for his
signature or veto
2. President must sign or veto the bill in its entirety.
iii. Congress may NOT delegate executive powers to itself or its officers
b. DOMESTIC Affairs
i. Appointment Power
1. President appoints Ambassadors, Federal Judges, and Official
Officers of the U.S. (Senate approves)
2. Congress may vest the appointment of inferior officers in the
President, heads of departments, or in the lower federal courts
a. Inferior Officer – those that can be fired by an officer of the
U.S. (i.e. U.S. attorneys can be fired by the Attorney
General)
3. Congress may NOT give itself or its officers the appointment
power
a. MBE Tip: Congress created new agency – gives
appointment rights to President for some, to Congress for
some, and to others - WRONG! (President must appoint)
ii. Removal Power
1. President – unless limited by statute, the President may fire
(remove) any executive branch officer
a. For congress to limit removal, it must be an office where
independence from the President is desirable AND
b. Congress cannot prohibit removal, it can limit removal to
where there is good cause
2. Congress may provide statutory limitations on the president’s
power to remove
a. Note – Can’t prohibit removal, but may limit removal
to good cause.
b. Note – Congress can remove executive officers through
impeachment.
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iii. Veto Power – President has the power to veto acts of congress.
1. Override – If the president disapproves (vetoes) an act of
congress, the act may still become law if the veto is overridden
by a two-thirds vote of EACH house.
2. Pocket Veto – The president has 10 days to exercise the veto
power. If he fails to act then the bill becomes law if congress is
in session, but is automatically vetoed if Congress is NOT is
session
3. Line Item Veto – ALWAYS unconstitutional.
iv. Impeachment and Removal – The president, vice president, federal
judges and officers of the U.S. can be impeached from the office for
treason, bribery, or for high crimes and misdemeanors.
1. Impeachment does NOT remove person from office
2. A majority vote of the House of Representatives is necessary
to invoke the charges of impeachment. (*Impeachment does not
remove)
3. 2/3 vote from Senate is necessary to convict and remove
v. Executive Privilege / Immunity
1. Privilege – President has executive privilege to keep certain
communications secret. (National security secrets are given
great deference by the courts)
a. Exception – In criminal proceedings, presidential
communication will be available to the prosecution.
2. Immunity – President has Immunity from Civil Suits for
money damages involving actions that occurred while in
office.
a. NO immunity for actions that occurred prior to taking
office
vi. Power to Pardon those accused or convicted of FEDERAL crimes
1. Exceptions:
a. Impeachment – cannot be pardoned for the offenses that
led to impeachment
2. Civil Contempt – pardon power doesn’t apply
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3. MBE Tip: Federal ONLY! Criminal Liability ONLY!
c. TAXATION
i. Federal Taxation on State Governments
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1. Congress may subject states to a regulation or taxation if the law
or tax applies to both the public and private sector. (i.e.
minimum wage laws)
2. Federal taxes applying ONLY to states must comply with the 10th
amendment.
a. Note – May indirectly regulate through the spending
power.
ii. STATES may NOT tax or regulate federal government activity
1. CANNOT pay state tax out of federal treasury
2. Exception – Nondiscriminatory, indirect taxes are permissible
(i.e. States taxing federal employees)
3. MBE Tip: Federal government NEVER has to comply with state
environmental standards
4. MBE Tip: A mom & pop store on federal land. States can Tax
because a private person is paying the tax, not the federal
government. (Can’t tax a gov owned store)
iii. State Taxation (not usually on Bar)
1. Must Not Discriminate – If States use their tax system to help
in-state businesses it will violate the commerce clause. (Tax
credits for in-state businesses)
2. A Non-Discriminatory tax will be valid if: (i.e. Not unduly
burdensome)
a. Substantial Nexus – May only tax activities that have a
substantial nexus to the state
b. Fairly Apportioned – State taxation must be fairly
apportioned (Burden is on taxpayer to prove unfair
apportionment)
c. Fair Relationship – Fairly related to the state services or
benefits provided
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1. Statutes – Congress, by statute, MAY apply constitutional
norms to private conduct
a. 13th Amendment can be used to prohibit private race
discrimination
i. MBE Tip: Discrimination never violates the 13th
Amendment, only slavery! However, discrimination
can violate laws created under the 13th
Amendment, Section 2.
b. NOT 15th Amendment – prevents race and gender
discrimination in voting.
i. Only where some state action is involved
c. Commerce Clause can be used to apply constitutional
norms to private conduct. (i.e. Civil Rights Act enacted
under the commerce clause)
d. NOT the 14th Amendment, Section 5 – Only used only to
regulate state and local governments (Not private
behavior)
2. Public Function – If a private entity is performing a task
Traditionally and Exclusively performed by the government.
c. Ex. Election primaries, company town, maybe prisons.
d. NOT a shopping center, education facility or public utility
3. Entanglement – government affirmatively Authorizes,
Encourages, or Facilitates unconstitutional activity. (Mere
acquiescence is not enough)
a. State Action When
i. Courts enforce racially restrictive covenants
ii. Administering a private discriminatory trust
iii. State leases premises to a discriminatory lessee
and the State derives a benefit from the
discrimination (Symbiotic Relationship)
iv. State provides textbooks to a school that racially
discriminated
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v. Discriminating private entity that regulates
interscholastic sports within a state
b. NO State Action When
i. Granting a license and providing services to a
private club
ii. Granting a monopoly to a Utility Company
iii. Heavily regulating an industry
iv. Private school that is over 99% funded by
government fires a teacher because of her speech
v. NCAA (private entity that operates all over the
country) orders the suspension of a basketball coach
at a state university
vi. Private club with a liquor license from the state
racially discriminates
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1. Criminally punishes conduct that was lawful when it was
committed
2. Increases punishment for a crime AFTER it was committed,
OR
3. Reduces the Evidence required to convict after the crime was
committed.
ii. Retroactive civil liability only need meet a rational basis test under
Due Process
iii. MBE Tip: Usually a wrong answer with respect to the contracts
clause.
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iv. A property owner may bring a takings challenge to
regulations that existed at the time the property
was acquired
v. Government conditions on development of property
must be justified by a benefit that is roughly
proportionate to the burden imposed, otherwise it
is a taking.
b. Decreasing Economic Value does NOT amount to a
taking
i. Investment backed expectations test: (Balance)
1. The social goals of the regulation,
2. The diminution in value of the property, and
3. Owner’s reasonable expectations for the use
of the property
ii. No right to the highest and best use of your property
3. Public Use – Broadly defined by the Supreme Court. Rationally
related to a legitimate public purpose i.e. health, safety,
welfare, economic, aesthetic (reasonable belief that the taking is
a benefit for the public)
ii. Just Compensation – Measured in terms of loss to owner based on FM
(gain to taker is irrelevant)
4. Compensate owner or terminate regulation and pay owner for
damages that occurred while it was in effect
f. LEVELS of SCRUTINY
i. Rational Basis – (1) Rationally related to a (2) Legitimate
government purpose
1. Deferential to government
2. BOP – Challenger (plaintiff) must prove the law had NO
conceivable legitimate purpose or law is not rationally
related
3. *ALL non-suspect classifications – Age, disability, wealth, etc.
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ii. Intermediate Scrutiny – (1) Substantially related to (1) Important
government purpose (3) Means Narrowly Tailored (But NOT the
least restrictive alternative)
1. BOP = Government
2. *Gender and Non Marital Children
g. DUE PROCESS
i. PROCEDURAL Due Process – Refers to the procedures the
government must follow if deprives a person of life, liberty, or
property. (2 Part Test – Deprivation / Procedures)
1. Has there been a DEPRIVATION of life, liberty or property?
a. Liberty – A deprivation of Liberty occurs if there is the
loss of a significant freedom provided by the
Constitution or a statute.
i. Examples:
1. Prisoners rarely have liberty interests
2. Institutionalize of child by parent requires
screening by neutral fact finder
3. Harm to reputation alone is NOT a
deprivation of liberty
4. Except in an emergency before an adult can be
institutionalized there must notice and a
hearing
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b. Property – A deprivation of Property occurs if there is
an Entitlement and that entitlement is NOT fulfilled
i. Entitlement – reasonable expectation to continue to
receive a benefit (This is the new test)
1. Attendance at public school, welfare benefits,
government employment, personal belongings,
and realty.
c. Intentional Deprivation – Government negligence is
not sufficient for a deprivation of due process.
Generally there must be intentional government
action or at least reckless action for liability to exist.
i. Emergency – However, in emergency situations,
the government is liable under due process only if its
conduct "shocks the conscience." (i.e. high speed
chase not)
ii. Waiver – Individuals may expressly waive due
process.
3. Procedure Requirements:
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a. Prior Notice and Prior Hearing
i. Welfare Benefits terminated
ii. Resident aliens being deported
iii. Before rights to a child are permanently removed
iv. Adult Commitment to Mental Institution
2. Child – Only a screening by a neutral fact
finder is required for a parent to
institutionalize a child
v. Termination of a parent’s custody rights
vi. Real property forfeiture (government seizure)
1. Except in emergency circumstances
2. Government can seize property in an illegal
activity even if it has an innocent owner
b. Prior Notice and a Post Hearing
i. Social Security/Disability benefits terminated
ii. Public Employment (Tenure / Termination)
1. Employee entitled to a pre-termination
response/hearing, but only entitled to full
adversarial hearing after termination
c. Subsequent Notice and a Subsequent Hearing
i. American citizen captured in foreign war and held as
enemy combatant in U.S. (trial, jury, counsel)
ii. Personal Property forfeiture
3. Exception – Government may seize property
from an innocent owner (co-owner) if used in
criminal activity
d. Notice and chance to explain
i. Public education discipline / dismissal – notice of
charges and chance to explain
1. corporate punishment schools – NO due
process required
e. Instructions to the jury and judicial review
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i. Punitive damage awards – grossly excessive punitive
damages are a violation of due process
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b. Durational residency requirements for receiving
benefits
vi. 1 year residency requirement to get divorced
c. Note – Restrictions on foreign travel need meet only
the rational basis test
c. CLASSIFICATIONS
i. Race and National Origin
1. Strict Scrutiny is applied
a. Necessary to achieve
b. Compelling government purpose
c. No less Restrictive Alternative (Means must be
necessary)
2. Proving Racial Classification
a. Classification exists on the face of the law
b. If the law is facially neutral, must show discriminatory
impact AND discriminatory intent
i. i.e. discriminatory use of peremptory challenges
based on race denies equal protection
3. Racial discrimination Benefiting minorities (Strict scrutiny is
still applied)
a. Government has a compelling interest in remedying
past discrimination
i. Numerical set-asides require clear proof of past
discrimination
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ii. Past discrimination must have been persistent and
readily identifiable. (i.e. NOT general societal
discrimination)
b. Race can be considered in drawing up new voting
districts but cannot be the predominant factor.
c. Educational institutions may use race as one factor in
admissions decisions to help minorities. (Colleges and
Universities)
i. No set asides or points added to admissions
applications for minorities
d. Public school systems may NOT use race as a factor in
assigning students to school unless strict scrutiny is
met
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iii. Gender Classifications
1. Intermediate scrutiny is used
a. Substantially related to an
b. Important government purpose
c. Exceedingly Persuasive justification
2. Proving Gender classification
a. Classification exists on the face of the law
b. If the law is facially neutral, must show discriminatory
impact AND discriminatory intent
i. i.e. discriminatory use of peremptory challenges
based on gender denies equal protection
3. Racial classifications Benefiting gender
a. Intentional discrimination benefiting Women / Men
triggers strict scrutiny
i. Laws Found to be Invalid
1. Woman can be awarded alimony, but men can
not
2. State supported all male / all female school
3. Discriminatory minimum drinking age
4. Classifications benefiting women based on role
stereotypes
ii. Laws Found to be Valid
1. Discriminatory statutory rape laws
2. All male draft
3. Classifications designed to remedy past
discrimination and differences in opportunity
b. Note – Government has a important government interest
in remedy past discrimination and differences in
opportunity
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1. The federal government must provide the same benefits to same
sex married couples as to opposite sex couples if the state in
which they live recognizes such marriages.
a. To do otherwise violates the equal protection clause.
2. States are NOT required to allow homosexuals to marry.
vi. Rational basis review is used for all other types of discrimination.
1. Age – (i.e. mandatory retirement age – Rational basis &
Government wins)
2. Disability
3. Wealth – (Discrimination against the poor)
4. Economic Regulations (Requiring to work for a certain number
of years)
5. Sexual orientation (Only case so far used rational basis)
6. Religion (Strict Scrutiny has been used under religion clauses
but has not been considered under equal protection)
3. FIRST AMENDMENT
a. FREE SPEECH
i. Content-based v. Content-neutral restrictions
1. Content Based restrictions on speech generally must meet strict
scrutiny
a. Necessary to further
b. Compelling Government purpose unrelated to
suppression
c. Means Narrowly Tailored
d. Two types:
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i. Subject matter (law depends on the topic of the
message)
ii. Viewpoint (depends on the ideology of the message)
1. Ex: pro-war v. anti-war; pro-government v.
anti-government
2. Content Neutral laws burdening speech generally must meet
intermediate scrutiny
a. Substantially related to an
b. Important government purpose unrelated to suppression
c. Burden NO more speech than necessary
i. Ex: No parades or demonstrations in the park
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iii. Vague, Overbroad, Unfettered Discretion (Void on its face)
1. Vague – law is void on its face if a reasonable person cannot
tell what speech is prohibited or allowed (“reasonable”,
“annoying”, “lewd”)
2. Overbroad – law is void on its face if it regulates substantially
more speech than the constitution allows to be regulated.
(“All”, “Any” speech)
a. Note – Fighting words are not protected by the first
amendment but are always found to be vague and
overbroad
3. Unfettered Discretion – law is void on its face if it gives officials
unfettered discretion in applying the law. (Need definite
standards)
a. Ex. City officials cannot have discretion to set permit
fees
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v. Symbolic Speech (Intermediate Scrutiny)
1. Government can regulate conduct that communicates if:
a. Substantially related to an
b. Important government purpose unrelated to suppression
c. Burden NO more speech than necessary to achieve the
government purpose
2. Examples:
a. Flag burning IS protected
b. Burning cross IS protected UNLESS done to intimidate
or threaten
c. Draft card burning is NOT (Facilitate a smooth draft)
d. Nude dancing is NOT
e. Election Campaigns
i. Contribution limits ARE constitutional
ii. Expenditure limits are NOT
vii. Privacy
1. The government may NOT create liability for the truthful
reporting of information that was lawfully obtained from the
government
a. Ex. Reporting rape victims name from a police report
b. However, the government may limit its OWN
dissemination of information to protect privacy (Ex.
Close trials to preserve a higher value)
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2. Media is NOT liable for broadcasting a tape of an illegally
intercepted call, if:
a. The media did NOT participate in the illegality and
b. It involves a matter of public concern.
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3. City officials cannot have discretion to set permit fees for public
demonstrations.
ii. Limited Public Forums (designated) – government properties that
the government could close to speech, but chooses to open. (Same
rules apply as to public forums)
1. Ex: Opening schools on evenings and weekends for speech
iii. Non-Public Forums – government properties that the government
constitutionally can and does close to speech.
1. Government MAY regulate speech so long as regulation is
Reasonable and Viewpoint neutral.
2. Examples:
a. School facilities on evenings and weekends
b. Military Bases
c. Area around Prisons and Jails
d. Advertising space on City Buses
e. Sidewalks on Post Office Property
f. Airports – can distribute literature, but not ask for money
iv. Injunctions
1. Content Based – Necessary to achieve a compelling Government
interest
2. Content Neutral – Challenged provisions burden no more
speech than necessary to serve a significant government
interest.
v. Private Property
1. There is no First Amendment right of access to private
property for speech purposes (Includes shopping centers)
4. Freedom of Association
a. Laws that Prohibit or Punish Group Membership must meet Strict
Scrutiny.
i. Must be proven that the person:
1. Actively affiliates with the group
2. Knew of its illegal activities, AND
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3. Participated with the specific intent of furthering those
illegal activities
b. Laws that require disclosure of group membership, Look to see if there
is a substantial burden on the right of association? (chill association) If
so, Government must prove Strict Scrutiny
c. Laws that prohibit a group from discriminating are Constitutional
unless they: (Strict Scrutiny)
i. Substantially interfere with an:
1. Intimate association – Small dinner party – person not invited
cannot sue
2. Expressive activity – KKK can exclude blacks; Boy scouts can
exclude gays
d. Political Patronage – government has the ability to demand loyalty of a
party that is currently in office. Test – Appropriate requirement for the
effective performance
5. Freedom of Religion
a. Free Exercise clause
i. Free exercise clause cannot be used to challenge a Neutral law of
General Applicability
1. Ex: Use of peyote by Native Americans in religious ceremony
was prohibited by state law that was neutral to everyone and did
not target that religion. Law was found to be constitutional
2. Strict Scrutiny is applied if the law was motivated to
interfere with the exercise of religion. (Ex. Law prohibiting the
sacrificing of animals)
ii. Government may NOT deny benefits to individuals who quit their
jobs for religious reasons. (Ex: Employee quit over working on
Sunday)
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