1
Q
Federal Court System:
Scope of Federal Judicial Power:
A
Article III, § 2, limits the jurisdiction of fed’l courts to:
- Law Based Federal Jurisdiction: Constitution or Federal Law
- Party Based Federal Jurisdiction:
- Controversies where U.S. a party
- Controversies b/w 2+ states
- Cases b/w a state & citizens of another states
- Cases b/w citizens of different states [diversity of citizenship]
- Cases involving foreign diplomats
2
Q
Federal Court System:
11th Amendment:
A
private individuals can’t sue a state in any court for money damages w/o state’s consent [BARRED BY STATE SOVEREIGN IMMUNITY]
- Only individuals cannot, other states or Feds can sue
- Only states, not cities or counties
- Only money damages, not injunctive relief
- State can waive privilege, if it is clearly express
- Congress can negate if enforcing 13, 14 or 15 amendment
3
Q
Other Limitations on Jurisdiction of Federal Courts: Art. 3, § 2, limits jurisdiction of fed’l courts to “___________.”
A
“cases & controversies.” [RAMPS]
4
Q
Mootness?
A
further legal proceedings have no effect or events have placed it beyond the reach of the law [too late?]
- Exception: CAPABLE OF REPETITION, YET EVADING REVIEW, voluntary cessation or class action suits
- NO ADVISORY OPINIONS: opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law.
5
Q
Ripeness?
A
the readiness of a case for litigation [too early?]
- TIP: If answer is “ripeness,” then question will most likely deal with declaratory judgment. [jmt of court in civil that declares rights/duties of parties in a dispute, which is legally binding, but DOES NOT ORDER ANY ACTION by a party. [preventive adjudication]]
6
Q
Abstention?
A
deference to state courts
- Fed’l court may abstain if the meaning of a state law is unclear.
- If state court proceeding is going on, fed’l court will abstain from hearing same matter.
7
Q
Standing?
A
- injury in fact: π suffered direct & personal injury, actual or imminent;
- causation: injury was actually caused by ∆; AND
- redressability: the court can redress the harm caused
8
Q
Taxpayer Standing?
A
gov’t allocated funds to support a violation of Establishment of Religion Clause found in 1st Amendment.
9
Q
3rd Parties Standing?
A
one raising injuries of another:
- Close relationship b/w injured & 3rd; AND
- Some hindrance/hardship affecting 3rd from protecting her own interest
10
Q
Organization Standing?
A
association suing on behalf of its members:
- Some direct injury to member(s);
- Injury relates to association’s purposes; AND
- Nature of injury & relief sought won’t need individual participation (no personal relief sought)
11
Q
Political Questions?
A
Fed’l courts cannot hear cases involving political questions. PQ are matter assigned to another branch of gov’t incapable of a judicial answer. 6 factors:
- Constitution suggests ultimate decision making authority is granted to another branch
- **Required question is political, rather than legal in character **
- Lack of judicially discoverable & manageable standards for resolving it
- Impossibility of a court’s undertaking independent resolution w/o expressing lack of respect due coordinate branches of government
- Unusual need for unquestioning adherence to a political decision already made
- Potentiality of embarrassment from multifarious pronouncements by various departments on one question
12
Q
Organization of Courts in Federal System:
Adequate & Independent State Grounds?
A
S.C. cannot take an appeal from a state court of law resort if state decision supported on state law grounds
- EXCEPTION: If state provision analogous to fed’l provision, then not adequate & independent state grounds
13
Q
U.S. Supreme Court Jurisdiction?
A
- Original Jurisdiction – Party based: (1) Ambassadors; (b) ministers & consuls; & (c) at least one state is a party
- Appellate jurisdiction exists where Constitution or a federal law are at issue.
- SC reached through APPEAL or WRIT OF CERTIORARI
- Congress’s Power Over the Courts:
- Lower Fed’l Courts: Congress can do what it would like Supreme Court: Nothing, really [other than change the laws]
- Congress Cannot: take a case out of SC appellate jurisdiction & make it original
14
Q
Constitutionality of a Fed’l law? State law?
A
- Constitutionality of a Fed’l law: Brought under an ENUMERATED POWER; Doesn’t violate constitutional right
- Constitutionality of a State law: Doesn’t violate constitutional right
TIP: Be weary of answer that say the Fed’l police power OR Congress’ power to promote general welfare. These powers don’t exist unless it’s the District of Columbia or another Fed’l territory.
15
Q
Powers of Congress:
Procedure to pass a law?
A
- Congress passes a bill w/ a majority in both houses.
- President then signs bill or vetoes it.
- (*) If \ vetoed, Congress can override veto if it gets 2/3 majority vote in each house.
16
Q
Name the 3 sources of power to legislate for Congress:
A
- Enumerated powers [art. 1 § 8]
- Enabling Clauses of the 13th, 14th, and 15th Amendments: Congress may enforce these amendments by appropriate legislations
- Necessary & Proper Clause: provides Congress with power to create laws necessary & proper to carrying into affect its other powers
**TIP: N&P Clause as an answer by itself will usually be incorrect. If it’s the N&P Clause in conjunction w/ another power, it is more likely to be a right answer. **
17
Q
Powers of Congress:
Commerce Power?
A
- Channels of interstate commerce [roads, waterways, any other means]
- Instrumentality of Interstate Commerce [vehicles]
- Substantial Effect: any activity w/ substantial effect on interstate commerce
- Cumulative Effect: Congress can use commerce power to regulate an activity that by itself would have not have substantial effect on commerce, but when cumulated would substantially effect commerce
- Limitations: Cannot use Substantial Effect to regulate interstate non-commercial activity [violent crime, gun control]
18
Q
Powers of Congress:
Taxing Power?
A
Congress has power to impose & collect taxes in order to pay debts & SPEND FOR GENERAL WELFARE. “Tax” must be 1/3:
- Objective – tax raises revenue
- Subjective – tax intended to raise revenue
- Regulatory – Congress have power to regulate activity
19
Q
Powers of Congress:
Spending Power?
A
Congress has power to spend for the general welfare.
Congress may place a condition on receipt of federal funds by a state if:
- Spending serves general welfare
- Unambiguous
- Condition relates to the fed’l program
- Cannot require states to do something unconstitutional
- Money cannot be so great as to cross line from suggestion to coercion
TIP: Don’t say something is unconstitutional b/c it is not for the general welfare
20
Q
Powers of Congress:
War and Defense Powers?
A
- Declare war;
- Raise support the army;
- Provide & maintain a Navy;
- Organize, arm, discipline & call forth a militia
* Authority to initiate measures necessary to provide for nat’l defense in peacetime & wartime. During wartime, Congress has power to: (1) Draft selective services systems; (2) Control prices & wages during wartime; & (3) Confine citizens to designated citizens during wartime
* Can establish military courts to try enemy combatants for war crimes or its soldiers. TIP: What rights does a terrorist have w/ respect to detention? Both U.S. citizens and non-U.S. citizens w/in U.S. or territories entitled to Due Process rights.
21
Q
Powers of Congress:
Power of Eminent Domain?
Property Power?
Bankruptcy Power?
Postal Power?
A
- Power of Eminent Domain – take private property for public purpose, but has to pay just compensation
- Property Power – regulate & dispose of federal property [TIP: If dealing w/ a fed’l territory and not a state, Congress has a general legislative power & can pass any law it would like.]
- Bankruptcy Power - Congress has the power “to establish uniform Laws on the subject of Bankruptcies throughout the U.S.
- Postal Power – power to establish Post Office
22
Q
Powers of Congress:
Admiralty and Maritime Power?
Copyright and Patent Power?
Investigatory Power?
A
- Admiralty and Maritime Power - Necessary & Proper Clause gives Congress complete & plenary power to fix & determine maritime laws throughout country.
- Copyright and Patent Power - Congress may “promote the Progress of Science & useful Arts, by securing for limited Times to Authors & Inventors the exclusive Right to their respective Writings and Discoveries”.
- Investigatory Power - extends to any matter related to its legitimate law making functions
- Things necessary to facilitate an investigation.
- Congress cannot: override individuals’ Constitutional rights
23
Q
Powers of Congress:
Speech and Debate Clause
A
**[privilege] – members of Congress cannot be punished/prosecuted for anything they say during debate on floor **
24
Q
Powers of Congress:
RECONSTRUCTION AMENDMENTS:
A
Congress has the power to enforce:
- 13th: bans slavery, by states & individuals
- 14th: states can’t violate Due P., Eq. Prot. & Privileges & Immunities of citizens
- 15th: states can’t discriminate on grounds of race in reference to voting
25
Powers of Congress:
RECONSTRUCTION AMENDMENTS:
**Valid enforcement Reconstruction Amendments:**
1. Who is Congress regulating? [If individuals has to be 13th--slavery]
2. Justification of 13-15. Congress must demonstrate a problem.
3. Remedy cannot go far beyond the amendments purpose. [must be CONGRUENT & PROPORTIONAL]
## Footnote
**Valid 14th/15th amend. legislation can overcome sovereign immunity. **
26
Executive Power:
**Chief Executive has the following powers:**
1. **Enforcement of Laws**
2. **Appointment Power**
3. **Removal Power**
4. **Veto Power**
5. **Pardon Power**
6. **Executive Privilege**
27
Executive Power:
**Enforcement of Laws?**
**Appointment Power?**
* **Enforcement** of Laws, but he cannot make them.
* **Appointment** **Power** of high level officials such as Ambassadors and Cabinet members w/ advice & consent of Senate.
28
Executive Power:
**Removal Power?**
* **Executive officials:** can remove w/o cause
* **Executive officials having fixed terms:** not until term is up, Unless good cause exists
* **Federal judges:** cannot remove even w/ cause, unless impeached
* **Exception:** Congress cannot require President to get their approval for a removal, Unless, Congress hires a special prosecutor to investigate the President
29
Executive Power:
**Veto Power?**
**Process?**
**the power of the President to unilaterally stop an official action, especially the enactment of legislation**
Veto Process:
1. **If President doesn’t act for a period of 10 days bill will become law. **
2. **Congressional Override:** If a bill is vetoed, then Congress may pass it w/ a 2/3 majority vote in both houses.
30
Executive Power:
**Pocket Veto?**
**if \>10 days are left in a Congressional session**
**when President receives Bill & he doesn’t sign it,**
**then it will expire before it becomes law**
31
Executive Power:
**Line-item veto?**
Law passed by Congress, & allows President to veto part of it & sign the rest.
***Unconstitutional***
**TIP: BICAMERALISM & PRESENTMENT are only ways a bill can become a law.**
32
Executive Power:
**Pardon Power?**
**President may grant pardons.**
Limitations of Pardon power:
* Only issue a *_pardon for Fed’l crime._*
* *_Pardon cannot undue an impeachment._*
33
Executive Power:
## Footnote
**Executive Privilege?**
* **Absolute privilege:** refuse to disclose info dealing w/ nat’l security
* **Presumptive privilege:** all confidential communication b/w President & his advisors
34
Commander in Chief of Military:
## Footnote
**Military Powers:**
*If Congress doesn’t declare war*, President’s powers are _LIMITED TO:_
* **Power to deploy Military forces response to surprise attack on U.S.**
* **Make tactical [battlefield] decisions**
35
Executive Power:
## Footnote
**International Affairs?**
Treaty Power
Executive Agreements
36
Executive Power:
International Affairs:
**TREATY POWER?**
**has power to make treaties w/ consent of Senate, but they must ratify treaty by a 2/3 majority vote before it becomes effective**
* Treaty has same status as Fed’l law once effective; therefore, it preempts state laws & prior Fed’l statutes
37
Executive Power:
International Affairs:
**EXECUTIVE AGREEMENTS?**
**President has power to enter into executive agreements w/ foreign nations, which do not require Senate ratification.**
* Will NOT preempt contrary Fed’l law, but it will prevail over state law
38
Interbranch Checks Upon Exercise of Federal Power:
**Presidential Limits on Congress?**
**Judicial Limits on Congress and the President?**
* Veto OR Pardon power
* hold a law Unconstitutional
39
Interbranch Checks Upon Exercise of Federal Power:
Judicial Limits on Congress and the President?
40
Interbranch Checks Upon Exercise of Federal Power:
**Congressional Limits on Executive?**
if acting w/in its enumerated powers it can impede Presidential actions
1. **Impeachment Power**
2. **Appropriations Power**
41
Interbranch Checks Upon Exercise of Federal Power:
Congressional Limits on Executive:
**Impeachment Power?**
**Congress can remove President, federal judges & any federal official from office.**
* **House of Representatives:** has sole power to impeach [indict]
* **Senate:** conducts actual impeachment trial & requires 2/3 majority vote
* **Impeachment worthy:** (1) Treason, (2) Bribery & (3) High crimes & misdemeanors
42
Interbranch Checks Upon Exercise of Federal Power:
Congressional Limits on Executive:
**Appropriations Power?**
Where Congress by legislative act explicitly directs President to spend appropriated money, President has no power to impound (i.e., refuse to spend or delay spending) the authorized funds.
43
RELATIONSHIP OF NATION & STATES IN FEDERAL SYSTEM:
**States' Police Powers:**
the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants
## Footnote
44
RELATIONSHIP OF NATION & STATES IN FEDERAL SYSTEM:
States' Police Powers:
**Constitution limits state’s police powers by:**
1. **EXCLUSIVE** **FEDERAL** **POWER**: Only Fed’l gov’t can do
2. **INDIVIDUAL** **RIGHTS**: cannot individual Constitutional Right
3. **PREEMPTION**: Fed’l law in an area preempts state law in said area
45
Intergovernmental Immunities:
**Immunity of Fed’l Gov’t?**
* **SOVEREIGN** **IMMUNITY**: Fed’ gov’t has sovereign immunity
* **SUPREMACY** **CLAUSE**: Fed’l law supreme over state law
* **TAXATION** **OF** **FEDERAL** **GOVERNMENT** **BY A** **STATE**: fed’l gov’t, its agencies & instrumentalities are immune from state taxation
46
Intergovernmental Immunities:
Immunity of State Governments:
**11th Amendment?**
11th Amendment *limits power of federal courts to hear lawsuits against state governments brought by citizens of another state/*foreign country; Congress can only create a private CoA against a state under 13-15 amend
47
Intergovernmental Immunities:
Immunity of State Governments:
**IMMUNITY FROM FED’L TAXATION if tax applied to either:**
1. Activities unique to state government
2. Essential gov’t functions
48
Intergovernmental Immunities:
Immunity of State Governments:
**ANTI-COMMANDEERING Doctrine:**
**Fed’l gov’t cannot force state’s to act in their sovereign capacity [e.g., pass or enforce laws]**
* 10th Amendment: powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
* TIP: It is not commandeering to forbid the states from doing something. This is even true if the prohibition extends to state sovereign functions.
* TIP: Spending clause can often be used here instead to achieve the same result. Must be relation b/w condition placed on state & Congressional purpose
49
Authority Reserved for The States:
## Footnote
**Dormant Commerce Clause?**
**Exceptions?**
**state cannot discriminate against out of state economic actors** [applicable to state taxes]
Exceptions DCC:
1. **Congressional authorization **
2. **Market-Participant** – acting like private person in market, then not subject to DCC scrutiny
50
Authority Reserved for The States:
Dormant Commerce Clause:
**State law *_facially discriminatory_* b/w in-state & out-of-state goods or economic actors, state *must* show:**
1. Regulation serves a *Compelling Interest*
2. *Necessary*
51
Authority Reserved for The States:
Dormant Commerce Clause:
**State law *_incidentally burdens_* interstate commerce, state must:**
1. Regulation serves an *important* state interest
2. *Burden proportional* to state interest
52
**State Action?**
**Exceptions?**
**bill of rights only applies only to gov’ts, not individuals**
1. **Public function theory:** private actor *CARRIES ON ACTIVITIES TRADITIONALLY PERFORMED* by the gov’t
2. **Significant state involvement theory:** private actor’s action is *CLOSELY ENCOURAGED & SUPPORTED* by the state [closely entangled]
3. **13th Amendment:** does not have a state action requirement
53
Due Process Clause?
* 14th Amend. DP Clause allows Bill of Rights to be invoked against states; DP Clause of 5th Amend. applies directly to fed’l gov’t.
* Both offer Procedural & Substantive protection, that can be asserted by all people or corporations.
## Footnote
**TIP: Privileges & Immunities Clause of 14th has frequently been wrong answer. Almost all P&Is are protected by Commerce Clause, Due Process Clause, or Equal Protection Clause. However, P&I Clause is an alternative to an Equal Protection Clause protection w/ regard to the RIGHT TO TRAVEL.**
54
Procedural Due Process?
**Gov't cannot deprive person/corp of life, liberty or property**
**w/o certain procedural steps**
1. **NOTICE**; AND
1. Importance of interest protected;
2. Risk of gov’t mistakenly taking away interest; &
3. Importance of gov’t interest in streamlining process
2. **HEARING**
* **Life**: physical life
* **Liberty**: freedom from restraint
* **Property** - person's or entity's expected rights/interest in something [E.g., Public education, term employment, welfare or driver’s license, but not at will public employment]
55
Substantive Due Process?
a principle protecting fundamental rights from government unnecessary and arbitrary government interference.
## Footnote
**gov’t must prove its actions were *_necessary_***
**to reach a *_compelling governmental interest._***
56
Substantive Due Process:
**List Fundamental Rights:**
* **Privacy rights** - Marriage, Contraceptives, Procreation, and abortion
* **Family Relations** – gov’t cannot prohibit members of an extended family from living in a single household, but banning unrelated persons okay.
* **Sexual Orientation** - cannot criminalize homosexual sodomy, Not a fundamental right, so only rational basis; states don’t have to recognize same sex marriages of other states
* **Private Education** - cannot prohibit parents from educating children outside public school system
* **Obscene Material** – right to possess w/in privacy of home, Not buy or sell; Exception: CHILD PORNOGRAPHY
* **Right to Die** – right to refuse medical procedures
* **Right to Travel** (not really a privacy right)
* **Right to Vote** (not really privacy right/scrutiny depends)
57
Substantive Due Process:
Fundamental Rights:
**Abortion?**
protected privacy interest in choosing to have an abortion before fetus is viable; therefore, any regulation on pre-viability abortion is *unconstitutional* if it imposes an **UNDUE BURDEN** on a woman’s right to choose an abortion.
* Ex. Undue burden: Total ban; Spousal consent/notification req.; parental permission req. for minors w/o judicial bypass option, but NOT parental permission for minors w/ judicial bypass; 24 hour waiting period; refusing public funds for abortions; & prohibition on unsafe abortion methods
* **Even subsequent to viability cannot restrict an abortion when necessary to protect life or health of the mother**
58
Substantive Due Process:
Fundamental Rights:
**Right to Travel?**
(not really a privacy right)
* 14th amend P&I Clause allows every citizen to **TRAVEL FREELY FROM STATE TO STATE & TO SET UP RESIDENCY IN A NEW STATE.**
* Right to international travel under due process clause, liberty interest, but gov’t can restrict to certain countries in name of nat’l security
59
Substantive Due Process:
Fundamental Rights:
**Right to Vote (not really privacy right/scrutiny depends)?**
* Right to privacy comes from 1st amend Right of Association & 14th. However, more amendments regarding the right to vote:
* **15th:** states cannot discriminate w/ respect to race right to vote
* **19th:** states cannot discriminate w/ respect to sex & right to vote
* **24th:** there can be no poll taxes to fed’l election, nor can states
* **26th:** states cannot discriminate w/ respect to age[18+] right to vote
* **Constitutional Restrictions:** Reasonable residency requirements; Reasonable voter registration requirements; Reasonable of the time & manner of casting votes; & Denying felons the right to vote. **Unconstitutional Restrictions:** States cant Impose a poll tax; can’t requires voters in school board elections be parents or own property; & can’t count votes using standard that lack uniformity or are too vague to vague
* **Presidential Elections:** not chosen by popular vote, but electoral college which is chosen by the popular vote, so the people who vote for a presidential election must be the same people who vote the state legislators [electoral college]
60
Takings Clause?
**5th amend provides that fed’l gov’t cannot take private property for public use w/o just compensation.**
* Can’t stop a taking, but can fight for just compensation.
* Applies to states through 14th.
* SC interpreted “public use” language of Takings Clause to mean “PUBLIC PURPOSE.” Thus, only something extraordinarily abusive won’t apply.
* **Direct government appropriation** (gov’t actually takes property) vs. **Regulatory taking**
61
Takings Clause:
**Regulatory taking:**
gov’t regulates property to the point that it has been constructively taken [onerous regulation
3 categories in determining whether regulation amounts to taking:
1. **PERMANENT** **PHYSICAL** **INVASION** [no matter how minor]
2. Reg. **deprives** property owner of **ALL** **ECONOMICALLY** **BENEFICIAL** **USE** of property
3. BALANCING physical/economic **IMPACT vs. DURATION vs. CHARACTER** of gov’t taking
62
EQUAL PROTECTION OF THE LAWS?
**part of 14th Amendment clause that no state shall deny to any person within its jurisdiction "the equal protection of the laws"**
## Footnote
63
EQUAL PROTECTION OF THE LAWS:
Standards of Review:
**Rational Basis?**
1. π must prove
2. gov’t action NOT ***RATIONALLY-RELATED*** to a ***_LEGITIMATE governmental interest._*** [laws cannot be arbitrary]
64
EQUAL PROTECTION OF THE LAWS:
Standards of Review:
**Intermediate Scrutiny?**
1. gov’t must prove
2. its action was ***SUBSTANTIALLY*** ***related*** to an ***IMPORTANT*** ***_governmental***_ _***interest_***.
65
EQUAL PROTECTION OF THE LAWS:
Standards of Review:
**STRICT SCRUTINY?**
1. gov’t must prove
2. its actions were ***NECESSARY*** &
3. narrowly tailored
4. to reach a ***_COMPELLING governmental interest._***
66
EQUAL PROTECTION OF THE LAWS:
**Facially Neutral?**
must show *specific intent* for
1. **racially disproportionate result**, &
2. **discriminatory effect**
* Neutral standard applied in a discriminatory manner Ex. Age, disability, homosexuality, illegal aliens & alienage if done by Congress.
67
EQUAL PROTECTION OF THE LAWS:
**Suspect/Quasi-suspect Classifications?**
* **Strict**: Alienage; Domestic travel; National origin; Race; Voting
* **Intermediate**: Gender; Illegitimacy; Undocumented alien children
* **Rational**: Age; Alienage (some); Disability; Sex orientation' Wealth
68
Suspect/Quasi-suspect Classification:
**Alienage?**
* **Public Function Exception:** may discriminate against aliens in activities where participation is in functions of gov’t.
* Fed’l law discriminating against aliens NOT subject to strict scrutiny b/c Congress has BROAD PLENARY POWERS TO REGULATE IMMIGRATION.
69
Suspect/Quasi-suspect Classification:
**Gender?**
for it to be constitutional it must be based on a **TRUE BIOLOGICAL DIFFERENCE** [Men must sign up to be drafted into the army or Women have to be older to consent to sex [b/c women get pregnant not men]]
70
Suspect/Quasi-suspect Classification:
**Affirmative Action: Race?**
Scrutiny for RACE based AA: Strict
**2 compelling interests for affirmative action:**
1. **Remedy effects of past discrimination** by state in a particular sector where program is being applied [not society at large, but former state discrimination in this area]
2. Compelling interest in having a racially diverse student body [collegiate level, not elementary], but it *must be narrowly tailored.* You can take race into account as one of many factors, but **race can’t be provided w/ an exact weight. [Not mechanical].**
71
Suspect/Quasi-suspect Classification:
**Affirmative Action: Gender?**
Scrutiny for GENDER based affirmative action: intermediate
**Lesser standard than RACE & can be used to remedy societal discrimination**
* Ex. Women can exclude low income years from their Social Security, & Retention of women in the Army [b/c of past discrimination]
72
**Privileges & Immunities Under 14th amend:**
“No State shall make or enforce any law which shall abridge P&I of citizens of U.S.”
* 14th amend. P&I has very limited application, which includes rights:
1. Right to travel across state lines & establish new residency
2. Right to petition Congress
3. Right to vote for Fed’l offices
4. Right to assemble
5. Right to enter public lands
* 14th amend. P&I NOT applicable to Corporations, b/c not a citizen. Corps. have protection from discrimination under the DCC.
73
**Privileges & Immunities Under Art. IV, § 2:**
[Comity Clause] “Citizens of each State shall be entitled to all P&I of Citizens in the several States.”
* Forbids serious discrimination against out-of-state indiiduals w/ respect to rights & activities fundamental to the nat’l union, such as:
1. Requiring non-residents pay higher commercial license fees
2. Commuter taxes applied only to non-residents
3. Only state citizens to get abortions in stage
4. Requires employers to only hire resident
* NOT: 1) May charge higher fee for recreational licenses [hunting/fishing]; & 2) Discrimination if objective is preserving scarce in-state resources
**TEST: Is discrimination substantially related to a substantial state interest?**
74
RETROACTIVE LEGISLATION:
Contract Clause?
“No state shall ... pass any … Law impairing the Obligation of Contracts”
* Applies only to state legislation, NOT to state court decisions or fed’l gov’t.
* Factors:
1. Severity of impairment of Contractual rights &
2. Importance of gov’t interest
75
RETROACTIVE LEGISLATION:
Ex Post Facto Laws?
**Constitution prevents both state & fed’l gov’ts from passing retroactive criminal laws.**
**Law retroactively alters criminal law if it:**
* Makes criminal an act that was NOT A CRIME WHEN COMMITTED;
* Prescribes GREATER PUNISHMENT FOR A CRIME AFTER ITS COMMISSION;
* DECREASES THE AMOUNT OF EVIDENCE REQUIRED for required for conviction; or
* EXTENDS THE STATUTE OF LIMITATIONS for a crime when it’s already
**Evidentiary changes re not ex post facto violations [it’s no longer hearsay]**
76
RETROACTIVE LEGISLATION:
**Bills of Attainder?**
legislative act that inflicts punishment w/o judicial trial upon named individuals or an easily ascertainable group for past conduct [Applicable to both federal & state legislatures]
* TIP: Ex post facto law will not single out an individual or a group whereas bills of attainder do. Bills of attainder also will not involve a trial.
77
1st AMENDMENT FREEDOMS:
## Footnote
**Freedom of Religion & Separation of Church and State?**
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” which applies to both fed’l & states.
78
1st AMENDMENT FREEDOMS:
## Footnote
**Establishment Clause?**
**FACIALLY NEUTRAL?**
government program prefers one religion, or one religious sect, over others, *_strict-scrutiny_* analysis will be applied.
If FACIALLY NEUTRAL, *Lemon* Test:
1. Secular purpose?
2. Primary effect to enhance/inhibit religion?
3. Excessive entanglement b/w gov’t & religion?
79
1st AMENDMENT FREEDOMS:
Establishment Clause:
**Religious Activities Conducted at Public Schools?**
**violate Establishment Clause**
## Footnote
**Ex.: **
* 1) Prayer & Bible reading,
* 2) Moment of silence if purpose is religious,
* 3) Sponsoring Rabbi/clergy to do prayer at high-school graduation,
* 4) Posting of 10 commandments,
* 5) Student prayer at graduation [b/c students are not free to leave due to importance]: SideNote- state legislature may employ a chaplain to conduct an opening day prayer. [b/c adults can come and go as they please],
* 6) Prayer at high-school football game, &
* 7) A religious club holding its meetings in a public school does not violate the Establishment Clause.
80
1st AMENDMENT FREEDOMS:
Establishment Clause:
**Public School Curriculum?**
**school district cannot place religious courses in its curriculum or ban the teaching of Darwinian principles**
81
1st AMENDMENT FREEDOMS:
Establishment Clause:
**Other Gov’t Endorsement of Religion?**
* City can include a creche in Christmas display in a park, b/c secular purpose. City is trying to celebrate a holiday, especially where there is also a Santa Clause and candy canes. It is not religious.
* City may grant license permitting a private group to put up a cross in a city park near a statehouse. [Not state, but private individuals]
* Placement of 10 Commandments on walls of courthouses is: unconstitutional b/c there is no secular purpose
* 10 Commandments as monument along w/ many other monuments surrounding State Capitol: constitutional, b/c it is not singling out religion to celebrate
* Sunday closing laws: constitutional, b/c secular purpose, good to have a day of rest
* Delegation of authority to religious organizations is unconstitutional.
82
1st AMENDMENT FREEDOMS:
Establishment Clause:
**Tax Deductions for Religious Institutions?**
validity of property tax exemption for religious institutions as the equivalent of exempting other charitable organizations [Violation if exemption only for sale of religious materials]
83
1st AMENDMENT FREEDOMS:
Establishment Clause:
**Government Aid to Religious Schools?**
* **State can provide money to both public and private schools for:** Secular textbooks; Standardized secular exams; School lunches; Interpreter for Deaf students; Media materials [laptops, periodicals]; & Transportation to & from school
* **Cannot give money: (1) Directly for religious instruction OR (2) Salary for Religious secondary teachers even if teaching secular courses**
* Ok at university level, b/c assumed professors’ professional norms will prevent them from engaging in religious indoctrination.
* **Vouchers allowing parents choice of sending kids to religious schools w/ state aid instead of failed public schools allowed b/c aid is neutral.**
84
1st AMENDMENT FREEDOMS:
Establishment Clause:
**Providing Public Services Through Religious Institutions?**
Fed’l grants to church-affiliated hospitals for maintenance and care of indigent patients have been held valid
85
1st AMENDMENT FREEDOMS:
## Footnote
**Freedom of Religion & Separation of Church and State:**
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” which applies to both fed’l & states.
86
1st AMENDMENT FREEDOMS:
**Free Exercise:**
Religious beliefs absolutely protected. Gov’t may not punish an individual by denying benefits or imposing burdens based on religious belief
* Gov’t may regulate/prohibit activity if regulation is neutral in respect to religion & of general applicability.
* Exceptions: 1) Can’t deny unemployment benefits if party fired due to observing religious beliefs [7th Day Adventist]; AND 2) Children may be excused from state’s compulsory education requirements [Amish]
* Gov’t can’t determine truth/falsity of a person’s religious beliefs, but may determine person’s sincerity in his claim of religious belief.
87
Freedom of Expression:
**Government as Speaker?**
**may discriminate based on content of speech**
88
Bar Admission?
state is permitted, under the Due Process Clause, to inquire into the qualifications & fitness of candidates for admission to the bar. [Can’t be denied admission to bar for membership in a subversive organization, can be force to take oath & barred for dishonest]
89
Freedom of Expression:
## Footnote
**Press?**
**press has no greater freedom to speak than anyone**
1. Newsperson has no 1st amend. right to refuse to testify before a grand jury
2. Radio & television broadcasting: slightly less protection then print media or individuals, b/c they get license from gov’t on limited medium
3. Cable television receives 1st amend. protection somewhere b/w: Network TV , but less than newspapers & citizens
4. Gov’t can ban offensive sexual content & speech on broadcast TV.
5. Where cable TV operators are subjected to content-neutral regulations: intermediate scrutiny
6. If content-specific regulation is imposed, Court has yet to select a standard of review; however, Court allows cable TV operators right to ban “indecent” programming on channels that are leased outright to unaffiliated 3rd parties (but not to public access channels).
90
Freedom of Expression:
## Footnote
**Vagueness?**
closely related to “overbreadth.” Regulations must be drawn “w/ narrow specificity” & not vague. Can a reasonable person distinguish b/w legal & illegal activities?
91
Freedom of Expression:
**Overbreadth?**
**must not regulate speech ‘by means which sweep unnecessarily broadly and thereby invade the are of protected freedoms”**
Overbreadth is an exception to 3rd party standing
92
**Freedom of Expression?**
* “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
* States may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech (even if speech is offensive). Strict Scrutiny is applied if there’s content-based discrimination.
93
Freedom of Expression:
## Footnote
**EXCEPTIONS?**
1. Gov’t passes strict scrutiny,
2. Conduct regulation [symbolic speech],
3. Gov’t is speaker,
4. Unprotected speech, &
5. Time, place and manner.
94
Freedom of Expression:
## Footnote
**Conduct Regulation?**
regulation of conduct, creating an incidental burden on speech, allowable if:
1. Objective to **further important gov’t interest unrelated to suppression** of free expression
2. Incidental burden on speech is **no greater than necessary** to serve gov’t interest
95
Freedom of Expression:
**LIST Unprotected Speech Catagories?**
rational basis scrutiny
1. Advocates violence or unlawful action
2. Fighting words
3. Hostile audience speech
4. Obscene speech
5. Defamatory speech
96
Freedom of Expression:
Unprotected Speech:
**Advocates violence or unlawful action?**
1. inciting or producing imminent lawless action &
2. likely to incite or produce such action
97
Freedom of Expression:
Unprotected Speech:
**Fighting words?**
words likely to incite an ordinary citizen to act of immediate physical retaliation
1. Must be **DIRECT PERSONAL INSULT.**
2. Gov’t can punish whole category, but can’t make content based governance
98
Freedom of Expression:
Unprotected Speech:
**Hostile audience speech?**
**elicits immediate violent response**
**against speaker by an audience**
However, police must make reasonable efforts to protect speaker & control the crowd if not possible, then may arrest speaker for disorderly conduct.
99
Freedom of Expression:
Unprotected Speech:
**Obscene speech?**
[3-part Test] [E.g., Child pornography]
1. Average person applying contemporary community standards, would find that work, as a whole, appeals to the **prurient** **interest** [local standards]
2. Depicts/describes, **in patently offensive way, sexual conduct specifically defined by applicable state law**; &
3. Work **taken as a whole, lacks serious** literary, artistic, political or scientific **value** [nat’l standard].
100
Freedom of Expression:
Unprotected Speech:
**Defamatory speech?**
1. π's private person & matter purely private concern: π need publication alone
2. π's private person & matter of public concern: π' need prove negligence about truth/falsity of statement
3. π's public official/figure: π's must prove “actual malice”
4. π's suing media ∆ under false-light concerning a matter of public interest: π's must prove actual malice
5. Can’t be held liable for publishing truthful info obtained from public record.
101
Freedom of Expression:
**Quasi-protected Speech?**
receive lower level of protection
Commercial speech
Sexual or indecent speech
102
Freedom of Expression:
Quasi-protected Speech:
**Sexual or indecent speech?**
1. Regulation *must* serve a **substantial government interest**, and
2. **leave open reasonable alternative channels of communication.**
103
Freedom of Expression:
Quasi-protected Speech:
**Commercial speech?**
Protected if not false/deceptive/relate to unlawful activity. If ok, then regulation must:
1. Serves a substantial gov’t interest
2. Directly advance substantial gov’t interest
3. No more extensive than is necessary to serve gov’t interest
* Ex: **STATE CAN’T BAN** (1) advertisement of drug prices, (2) attys advertising legal services, & (3) ALL advertising for legal/lawful products.
* **Can limit.** STATE CAN BAN (1) attys soliciting clients in person & (2) Commercial billboards
104
Freedom of Expression:
**Prior Restraint?**
gov’t cannot suppress or restrain speech in advance of it publication or utterance [strong presumption against]
* Ex. GOV’T CAN’T REQUIRE enjoin publication of Pentagon Papers OR Confiscation by Post Office of mailed materials determined by Postmaster Gen’l to be “obscene.”
105
Freedom of Expression:
Prior Restraint:
**Exceptions?**
1. Military classification
2. Gov’t on ground of Nat’l security
3. Agency requires review of materials concerning employment that deal/t w/ Nat’l security
106
Freedom of Expression:
Prior Restraint:
**Factors in determining if restraining order against pretrial publicity is appropriate:**
1. Nature of pretrial publicity,
2. Availability of other methods to mitigate pretrial publicity, &
3. Likely effectiveness of restraining order
107
Freedom of Expression:
Prior Restraint:
**Censorship or licensing of motion pictures prior to its exhibition:**
1. Censoring Board standards have to be narrowly drawn & reasonable
2. After denial CB must act promptly seeking an injunction
3. CB has burden of proof
4. Prompt judicial determination provided
108
Freedom of Expression:
Prior Restraint:
**License/permit for activities as a parade, demonstration, or rally:**
1. Licensing statute is valid if valid on its face.
2. If facially void (i.e., gives licensing officials unrestricted discretion), then can go through w/ it anyway. However, if enjoined from acting, then must either obey injunction or appeal it.
109
Freedom of Expression:
**Restrictions on the Denial of Public Employment?**
an individual can’t be denied public employment based on membership in a political organization, Unless position is a high-level policymaking position
110
Freedom of Expression:
Public Employment:
**OATH REQUIREMENT?**
* **Gov’t CAN require public employees to take oath to support Constitution & oppose overthrow the gov’t by illegal means.**
* **GOV’T CANNOT REQUIRE** (1) public school teachers do not have to report a list of all organizations to which they belong; (2) employees to swear not to: aid, advise or influence the communist party, (3) employees to swear to inspire reverence for the flag; & (4) school children do not have to recite the Pledge of Allegiance (not public employees)
111
Freedom of Expression:
Public Employment:
**EXCEPTIONS?**
1. Member of a subversive organization
2. Membership w/ knowledge of illegal aims of organization, &
3. He has specific intent to further those illegal ends
112
Freedom of Expression:
## Footnote
**Time, Place, Manner:**
gov’t may place reasonable restraints on time, place, & manner of speech in public areas [places historically associated w/ expressive conduct]
**3-part test:**
1. *Narrowly tailored*
2. *Important gov’t interest*
3. *Other ample forms of communication*
* STATE **CAN** REQUIRE (1) large gatherings get permit to use public property, if it has define grounds/structure for approval/denial, (2) Buffer zones for Peaceful protest on a sidewalk or in front of a private, (3) door-to-door solicitors to identify themselves to local authorities & (4) Use of amplifiers w/in volume & hours.
* STATE **CAN’T** REQUIRE** ** (1) require parades or marches to pay for police protection or (2) complete ban on door-to-door solicitation, b/c a homeowner can protect his privacy by posting a “No Solicitors” sign.
113
Freedom of Expression:
Time, Place, Manner:
**Speech-related activities at non-public forums:**
[military bases, jails, gov’t workplaces, & mailboxes] can be regulated by reasonable time, place, & manner regulations. The test used by the Court requires a government regulation to be:
**2-part test:**
1. **View-point neutral &**
2. **Reasonably related to legitimate interest**
* May sell space for: commercial advertising, but not political advertising
* Public television station can exclude a candidate from its debate.
114
11th amendment does not allow suit against a state for money damages in either the state's own court or federal court unless the state consents or Congress expressly says so. You may, however, sue a state for money damages in a _____________ court.
sister state’s
115
Note that the Eleventh Amendment protects states and state agencies, not __________ governments (no protection for cities, counties, or towns).
**local**
## Footnote
* **Can sue a state officer (but only for personally); Can sue for injunctive relief simply by enjoining the appropriate state officer (e.g., sue the state attorney general); Damages from the state treasury are barred (unless Congress expressly says so to enforce individual rights).**
116
**Adequate and Independent State Grounds (AISG) rule?**
The Supreme Court can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on an **adequate and independent state grounds**.
117
Advisory Opinion?
* Federal courts cannot issue advisory opinions.
* Cannot rule on the constitutionality of propsed legislation
* Federal courts decide cases; they do not make recommendations to executive officers
118
**Standing to Sue?**
Requires:
1. ***_injury;_***
2. ***_causation;_*** &
3. ***_redressability_*** (court can remedy or redress injury)
* **An organization has standing if its members have standing.**
119
Federal taxpayers always have standing to challenge their own tax liability. However, taxpayers do not have standing to challenge government expenditures. **Exception?**
Under the Establishment Clause: An establishment of religion challenge to **specific congressional appropriations** can be challenged by **any taxpayer.** (Note also that state courts often allow municipal taxpayers to challenge a municipality’s expenditures.)
120
Federal Question Jurisdiction?
**D.C. shall have O.J. over all C.A.U.C.L.T. of U.S **
** **
* fed’l law created private right of action OR fed’l issue in state law created CoA
* Anticipate defense is in fed’l law insufficient, must be well pleaded complaint
121
Diversity Jurisdiction?
** D.C. has O.J. over all civil actions, when:**
* **A.I.C. exceeds $75K** excluding I&C, &
* 1 π may aggregate claim amts, but multiple πs may not
* **Complete diversity of citizenship** among parties [π(s) different than ∆(s)]
**Diversity MUST exist at time of filing **
122
CITIZENSHIP:
## Footnote
**Individual?**
**U.S. citizen domiciled in another country?**
**Partnership?**
**Corp?**
**Alien?**
**Insurer/Legal Representative?**
**Foreign countries on both sides?**
* **Individual**: domicile [not residence] – where you intend to stay INDEFINITELY [time of filing]
* **U.S. citizen domiciled in another country**: has no citizenship [Destroys Citizen]
* **Partnership** (unincorporated entity): citizenship of each member
* **Corp**: (1) state of incorporation & (2) P.P.B. [“nerve center” headquarters]
* **Alien**: permanent resident alien citizen of state of domicile; all other aliens [tourists or illegal aliens] home country is state of domicile
* **Insurer/Legal Representative**[not party]: State of insured/decedent/infant/incompetent
* **Foreign countries on both sides**: require U.S. citizens for each, but FC[π] can sue U.S. citizen
123
**Supplemental Subject Matter Jurisdiction?**
Any civil action D.C. has O.J., it has S.J. over all other claims:
* so related to C.O.A. w/in O.J. they form part of same “case or controversy"
* claims share “CNOF”
124
Supplemental Subject Matter Jurisdiction:
**Under what conditions does supplemental jurisdiction destroy diversity under § 1332?**
Supp. J. on C.o.A. based solely on section 1332--not over claims by π against persons made parties under Rule 14, 19, 20, or 24 when exercising supp. J. over claim--would destroy diversity under 1332
125
**Supplemental Subject Matter Jurisdiction:**
D.C. may decline S.J. over claims if:
1. raises NOVEL OR COMPLEX issue of State law,
2. State law SUBST’LY PREDOMINATES over claim(s) D.C. has O.J.,
3. D.C. DISMISSED ALL claims that had O.J., or
4. OTHER COMPELLING reasons for declining jurisdiction.
126
Supplemental Subject Matter Jurisdiction:
## Footnote
**Tolling?**
Period of limitations for supplemental claims are ***_tolled_*** while they are ***_pending in federal court & for 30 days after they are dismissed_***,
* does not apply to toll the period of limitations for state law claims asserted against non-consenting state defendants &
* dismissed on 11th Amendment grounds.
127
**Removal of State Court Actions?**
C.o.A. in state court & D.C. has O.J. on C.o.A. A.u. C.L.T. of U.S. is removable by ∆(s) to D.C., if:
1. **All ∆(s) consent** to removal, then
2. **File signed notice** of removal w/ S&P statement of **grounds for removal**, w/ copy all pleadings/orders/process serve on ∆(s) in D.C.
3. **w/in 30 days of receipt** by 1st ∆ of formal service [compl & summ]
4. Promptly after filing notice ∆(s) shall **give written notice all adverse parties & file copy of notice w/ clerk** of State court
**NOT INITIALLY REMOVABLE ∆ may remove w/in 30 of removability & w/in 1 year from start**
**Not applicable if a ∆ citizen of state being removed from**
128
Remand of State Court Actions?
**if notice of removal defective, π may file motion to remand suit back**
1. w/in 30 days[after waived] of receipt of notice of removal, &
2. object to all procedural defects concerning removal
* **May Remand if D.C. determine all fed’l matters resolved if state law claim predominates in interest of fairness/economy/comity [Remand\>for discretion\>Appeals Court will review, but Remand\> lack SMJ/defect removal procedureàNOT appealable]**
129
Writs of Habeas Corpus?
1. **civil CoA brought against jailor** of a ∆ in confinement,
2. **∆ exhausted all state remedies,**
3. **brought w/in 1 year of final judgment, which**
4. **claims confinement in violation of Constitutional rights**
* Granted if Violation of Due process, Against self-incrimination, Against double jeopardy, & Against cruel & Unusual punishment
130
Political Questions?
* A non-justiciable question—a question, in its nature, that is fundamentally political, and not legal.
* Examples of non-justiciable political questions include:
* Guarantee Clause(protectingtherepublicanform of government);
* Foreign affairs, such as opening or breaking off diplomatic relations with another country; impeachment procedures; and
* Political gerrymandering (drawing districts to establish a political advantage).
* The court has found no judicially manageable standards for determining what is and what is not acceptable in the area of drawing districts.
131
**Anti-Commandeering?**
**Congress cannot force states to adopt or enforce regulatory programs.** It cannot commandeer state and local officers to carry out federal programs.
* Ex: The Brady Gun-Control Act required background checks for people wanting to purchase firearms, and it required that state and local law enforcement carry out those background checks. The Supreme Court said this was unconstitutional.
132
Necessary and Proper Clause?
Congress has the power to **make all Laws which shall be necessary and proper for carrying into Execution** the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof
* **not a free-standing power of Congress; works only as an add-on to some other legislative power**
133
Thirteenth Amendment?
* Congress has broad power to legislate against RACIAL discrimination, whether public or private
* ***Includes purely private racial discrimination***
134
**What can Congress do to enforce regulatory programs?**
* It can bribe states through use of the SPENDING power.
* It can adopt its own regulatory program and enforce it with federal officers. (It cannot commandeer state and local officers to carry out federal programs.)
135
15th Amendment?
**Congress has the power to ensure no racial discrimination in voting.**
136
14th Amendment?
Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts.
137
Who are executive officers?
Anyone who ***_takes action_*** on behalf of the U.S.
* Just as Congress cannot hire or fire an executive officer, it cannot give executive power to anyone it can hire or fire.
* Only the President can Appointment and Removal of Executive Officers
138
Treatise vs. Executive Agreements?
* **Treaties:**
* negotiated by POTUS, but requires 2/3 Senate approval (vote).
* Once approved, same authority as a statute.
* **Executive agreements:**
* not submitted for Senate approval;
* can be authorized, precluded, or overridden by statute, but they *take precedence* over conflicting state laws;
* lacks binding status of a treaty.
139
**State Taxation of Interstate Commerce?**
1. Must be a ***substantial nexus*** between the taxing state and the property/activity to be taxed; AND
2. Must be a ***fair apportionment*** of tax liability among states
* States tax all commodities w/in their borders on a specified date (called tax day), but not goods that are merely in transit – commodities have to come to rest in the state.
* Rule: Pay the full tax to every state where goods are stopped for a business purpose on tax day. No taxes are due where they are merely passing through
* Each state in which an instrumentality is used can tax the value of that instrumentality.
140
**Impeachment?**
* Applies to executive officers
* Accusation of high crimes or misdemeanors requiring a majority vote of HoR.
* Trial in the Senate; Conviction requires a 2/3 vote of the Senate.
* The remedy is removal from office.
* No other penalty applies.
141
Impoundment?
* If a statute gives POTUS discretion to spend or withhold funds, he may do so.
* But, when a statute unambiguously requires that funds be spent, POTUS has no power not to do so. There is no power to impound funds.
142
Legislative Veto?
An attempt by Congress to pass a law reserving to itself the right to disapprove future executive actions by simple resolution, which is Unconstitutional.
* ***Congress cannot evade POTUS’s guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.***
143
Delegation of Powers?
* Congress can delegate its power to administrative agencies, so long as there are ***_intelligible standards governing the exercise of that delegated power._***
* Not a demanding test – almost all delegations of legislative powers are upheld.
144
**Full Faith and Credit Clause?**
States don’t have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdiction to render a final judgment on the merits.
145
Intergovernmental Immunities:
## Footnote
**President?**
**Judges?**
**Legislators?**
* **POTUS**
* **absolute immunity for official acts**
* Has an executive privilege not to reveal confidential communications with presidential advisers, but that privilege can be outweighed by a ***specifically demonstrated need*** in a criminal prosecution (Nixon)
* **Judges:** absolute immunity for all judicial acts.
* **Legislators**:
* Speech & Debate Clause
* The official acts of a federal legislator cannot be introduced into evidence.
* Senators and Congressmen and their aides cannot be prosecuted or punished in relation to their official acts.
146
Privileges & Immunities:
## Footnote
**There can be no legal requirement of residency for**
**\_\_\_\_\_\_\_\_\_\_\_ employment. States cannot require that you live/reside in the state to work in the state. However, ___________ employment can require residency requirements.**
PRIVATE
PUBLIC
* Ex. of public employment: A city hiring only city residents or requiring a certain percentage of city residents on city construction projects.
* Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses.
147
Authority Reserved for The States:
Dormant Commerce Clause:
**In the absence of federal regulation, state regulation of commerce is valid so long as:**
1. There is **no discrimination against out-of-state interests**;
2. The regulation does **not unduly burden interstate commerce**; and
3. The regulation does **not apply to wholly extraterritorial activity.**
148
Authority Reserved for The States:
Dormant Commerce Clause:
**Exceptions?**
1. **Market Participant:** When a state is buying or services goods or services, it can choose to deal with only in-state persons.
2. **Subsidies:** A state can always choose to subsidize only its own citizens (for example, welfare benefits or in-state college tuition).
3. **Federal Approval:** Remember, the Dormant Commerce Clause applies only in the absence of federal action. If Congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests.
149
**A state may not regulate conduct occurring \_\_\_\_\_\_\_\_\_\_.**
wholly beyond its borders
* Ex: Connecticut tried to legislate that beer sold in Connecticut could not be sold at a price different from the price of beer sold in other states.
150
Due Process vs Equal Protection
* If a law denies a fundamental right to **everyone**, it violates *_substantive due process_*
* If a law denies a fundamental right to **only some**, it violates *_equal protection_*
151
**Affirmative Action?**
policy of favoring disadvantaged groups perceived to suffer from discrimination within a culture
* strict scrutiny
* **Specific past discrimination:** Affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action.
* Preferential admissions are allowed if necessary to achieve a diverse student body and diversity is essential to the education
* Quotas are not allowed
* Separate tracks or procedures for minority applicants are not allowed.
152
1st AMENDMENT FREEDOMS:
Freedom of Religion:
**“Ministerial exception”**
Non-discrimination employment laws cannot be applied to ministers
* **The Supreme Court held that the 1st Amendment precludes claims concerning the employment relation between a religious institution and its ministers.**
* **The federal government cannot regulate employment relations betweena religious institution and its ministers.**
* **The term “minister” was construed broadly.**
