Constitutional Law

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Constitutional Law by Mind Map: Constitutional Law

1. I Federal Judicial Power

1.1. Requirement for cases

1.1.1. Standing Injury. Has been injured (Personally suffered); Imminently will be injured (For injunctive or declaratory relief) Causation and redressability No third party standing Except No generalized grievances. Can't sue solely as a citizen or taxpayer having the government follow the law Except: Taxpayer have standing to challenge government expenditures as violating the Establishment Clause

1.1.2. Ripeness Whether a federal court may grant pre-enforcement review of a statute

1.1.3. Mootness If event after the filing of a lawsuit end the P's injury, case must be DISMISSED Except:1) Wrong capable of repetition but evading review 2) Voluntary cessation 3) Class action

1.1.4. Political Question Doctrine Constitutional violation that federal courts will not adjudicate i.e. republican form of government clause; challenges to the President's conduct of foreign policy; challenges to the impeachment and removal process; challenges to partisan gerrymandering

1.2. Supreme Court Review

1.2.1. Case come to the Supreme Court by Writ of certiorari

1.2.2. Hear cases only after a final judgment of the highest state court, Appeals, 3-judge federal district court

1.2.3. For state court decision, Can't be an independent and adequate state law ground of decision if 2 grounds, if SC reversal will not change the result, Can't hear it.

1.3. Lower Federal Court Rule

1.3.1. Federal Court CAN'T hear suits against state (Eleventh Amendment)

1.3.2. State Courts CAN'T hear suits against states (Sovereign Immunity)

1.3.3. Exception Waiver Under Section 5 of the Fourteen Amendment Federal Government may sue State Government Bankruptcy proceedings

1.3.4. Can sue state officers Can't be sued if state treasury will pay retroactive damages

1.3.5. May not Enjoin pending state court proceedings

2. II Federal legislative Power

2.1. CONGRESS's authority to act

2.1.1. Express or implied Congressional power Police Power Congress usually has NO police power. Exception: 1) Military 2) For Indian reservation; 3) For federal land and territories; 4) For district of the Colombia

2.1.2. Necessary and proper clause Proper mean to execute the law

2.1.3. Taxing/Spending power and the commerce power Tax and spend for general welfare the Commerce Power Channels Instrumentalities, persons or things Economic activities that have a substantial effect on interstate commerce

2.1.4. Tenth Amendment as a limit All powers not granted to the US nor prohibited to the states are reserved to the states or the people Congress can't compel state regulatory or legislative action. Can INDUCE state government action by putting strings on grants, but 1) conditions are expressly stated 2) related to the purpose of the spending program 3) Can't be coercive Congress prohibit harmful commercial activity

2.1.5. Section 5 of the Fourteen Amendment Congress may NOT create new right or expand the scope of rights May prevent or remedy violation of rights recognized by the courts. Such law must be "proportionate" and "congruent"to remedying constitutional violations.

2.2. Delegation of Power

2.2.1. NO LIMITS on Congress's ability to delegate legislative power

2.2.2. For Congress to act, must 1) pass by both the House and the Senate (bicameralism) and 2) give the bill to the President to sign or veto (presentment) Unconstitutional - legislative vetos and line-item vetos

2.2.3. Congress may not delegate Executive power to itself or its officers

3. III Federal Executive Power

3.1. Foreign policy

3.1.1. Treaties 1) Negotiated by the President and 2) are effective when ratified by the Senate Treaties > state law Treaties > federal statute, if adopted last Treaties < Constitution

3.1.2. Executive Agreements Effective when signed by the President and the head of the foreign nation ANY purpose Executive Agreement > State law; Executive Agreement < federal statute, Constitution

3.1.3. Congress can't designate the capitol of a foreign country

3.1.4. The President has broad power as Commander-in-Chief to use American troops in foreign countries

3.2. Domestic Affairs

3.2.1. Appointment Power President appoint Ambassadors, federal judges and officers President may NOT make recess appointment during intrasession recesses that are <10 days Congress may vest the appointment of Inferior Officers in the President, the head of departments or the lower federal courts Inferior officers can be fired by the President Congress may not give itself or its officers the appointment power

3.2.2. Removal Power President may fire any executive branch office unless limited by statute Congress cannot prohibit removal, it can limit removal to where there is good cause Congress limit removal, must be an office where independence from the President is desirable (i.e. Independent consult) Cannot limit removal of president's Cabinet Impeachment The President, Vice President, federal judges and offices can be impeached and removed for Treason, Bribery, high crimes and misdemeanor Impeachment does not remove a person from office Impeachment by House of Representative requires 1/2 vote; Senate requires 2/3 vote President has absolute immunity to civil suits for money damages for any actions while in office President has executive PRIVILEGE for presidential papers and conversations, but such privilege must yield to other important government interests President can PARDON those accused or convicted of federal crimes

4. IV Federalism

4.1. Preemption

4.1.1. Supremacy Clause of Article VI provides that Constitution, law and treaties pursuant to it are the supreme law of the land

4.1.2. Federal law > State law, if 1) mutually exclusive, 2) impedes the achievement of a federal objective, 3) Clear Intent by Congress

4.1.3. State may NOT tax or regulate federal government activity

4.2. Dormant Commerce Clause

4.2.1. Subjective: State Goverment If Congress, ask if has authority to act

4.2.2. Protect out-of staters for interstate commerce

4.2.3. The test Discriminatory law: INVALD unless necessary to achieve important gov purpose Non-discriminatory: VALID unless burden on IC out-weighs benefits Exception: 1) Gov action re performance of traditional gov function; 2) Market participant.

4.3. The Privileges and Immunities clause of Article IV

4.3.1. Protect US Citizens for their fundamental rights in important commercial activities and civil liberties P&I is usually a wrong answer Except the right to Travel Corp and aliens cannot use

4.3.2. The test Discriminatory law: INVALID unless necessary to achieve important gov purpose

4.4. Does the state law discriminate out-of-staters?

4.4.1. NO Violate DC clause: If burden inter state commerce exceed benefits P&I of Article IV doesn't apply

4.4.2. YES Violate DC clause: If burden inter state commerce, UNLESS necessary to achieve an important government purpose Exception: 1) Congressional approval; 2) Market participant (prefer its citizen receiving benefit from gov program) Protecting the in-state commerce in the expense of out-of-staters could never be an important gov purpose Violate P&I of Article IV: if regard to out-of-stater's ability to earn livelihood. Unless it is necessary to achieve an important gov purpose With regard to Fundamental rights or important economic activities Corp and aliens cannot use the P&I clause No non-discriminate approach could achieve

4.5. State taxation of interstate commerce

4.5.1. State can't use their tax systems to help in-state businesses

4.5.2. May only tax activities if there is a substantial nexus to the state

5. V Constitution Protection of Individual Liberties

5.1. Is there a government action?

5.1.1. Constitution applies ONLY to government action.

5.1.2. Congress by statute may apply constitutional norms to PRIVATE conduct Thirteenth Amendment: prohibit private race discrimination Prohibits Slavery. Allow Congress to make statute to prohibit race discrimination Commerce power Cannot use Section 5 of the fourteen Amendment, ONLY to state government

5.1.3. Exception (Applies to private conduct) Private entity performing a task traditionally, exclusively done by the gov Gov affirmatively authorizes, encourages, or facilitates unconstitutional activities State action: - Gov leases premises to a restaurant that racially discriminates; - provides book to racially discriminating school; - private entity regulate interscholatic sports NO state action: - Private school 99% funded by gov; - Private club with state liquor license

5.2. The application of the Bill of Rights

5.2.1. Applies Directly only to Federal gov

5.2.2. Applies to State and Local gov through Due Process Clause (Fourteen A) Except Not to have a soldier quartered in a person's home (Third A) Grand jury indictment in criminal cases (Fifth A) Jury trial in civil cases ( Seventh A) Against excessive fines ( Eighth A)

5.3. Level of Scrutiny

5.3.1. Rational basis Rationally related Legitimate gov purpose Challenger has the burden of proof Prove it's not conceivably legitimate gov purpose or not rationally related

5.3.2. Intermediate Scrutiny Substantially related Important gov purpose Actual purpose, conceivable purpose doesn't work Gov has the burden of proof

5.3.3. Strict Scrutiny Necessary Compelling gov purpose

6. VI Individual Rights

6.1. Procedure Due Process

6.1.1. What kind of notice did the gov provide to take away the property?

6.1.2. Has there been a deprivation of life, liberty of property? - Liberty: Loss of a significant freedom provided by the Constitution or a statute; - Property: Entitlement not fulfilled Must be Intentional or reckless. Gov negligence is not sufficient. In emergency, liable if "shocks the conscience" Gov is not liable for failure to protect people from privately inflicted harms Unless: 1) the person is physically in the gov's custody; 2) gov caused the danger

6.1.3. If no, gov need not provide procedural due process

6.1.4. If yes, what Procedures are required? Balance Test Importance of the interest to the individual Additional procedure to increase accuracy of decision possible? Gov's interest (Efficiency in saving money) Examples Pre-notice and hearing required: - Wealth/benefit - School discipline a student (Proper punishment in school ie spanking does NOT require any due process) - Parent’s right to custody a child - Prejudgment attachment or gov seizure of assets Post hearing: - Social security disability benefit

6.2. Economic Liberties

6.2.1. Rational Basis Test only

6.2.2. The Taking Clause Gov may take private property for public use if provides just compensation Is there a taking? Confiscation or physical occupation Regulation that leaves no reasonable economically viable use of the property Is it for public use? Act out of a reasonable belief that the taking will benefit the public If not, has to give the property back Is just compensation paid? Measured in terms of the loss of the owners. (Market value) Gain of taker is irrelevant

6.2.3. The Contract Clause No state shall pass any law impairing the obligation of Contract existing contract only, Interfere w Future contract is not limited State and local laws ONLY Strict Scrutiny for Gov contract Intermediate scrutiny for Private contract Does the legislation substantially impair a party’s rights under an existing contract? If so, is the law 1) a reasonably and narrowly tailored means 2) of promoting an important and legitimate public interest? Ex post facto clause Neither state nor federal gov may pass legislation that retroactively alters criminal liability Criminal only. Always comes as a wrong answer in Contract Clause Retroactive civil liability only need meet a rational basis test

6.3. Privacy

6.3.1. Substantive due process

6.3.2. Control the upbringing of one's children Court order granting grandparent visitation with parent's objection is unconstitutional Parents have right to send the kids to procure school

6.3.3. (Strict Scrutiny) - Marry - Procreate, - Custody one's children, - Keep the family together - Purchase and use contraceptives (Level of scrutiny unknown) - Engage in private consensual homosexual activity P39

6.3.4. Abortion Undue burden test: Can regulate if not create an undue burden Prior to viability, may NOT prohibit abortion. Spousal consent and notification law are UNCONSTITUTIONAL Parental notice and consent laws for unmarried minors. So long as creates alternative procedure by going before a judge finding 1) in the minor's best interest 2) mature enough

6.3.5. Right to refuse medical treatment Even life-saving medical treatment. Even food and water A state may require clear and convincing evidence A state may prevent family members from terminating treatment for another.

6.4. Second Amendment right to bear arms

6.4.1. NOT absolute, the gov can regulate who, where, what kind of gun

6.5. Right to Travel

6.5.1. Protected by P&I clause under Fourteen A

6.5.2. Prevent from moving into a state - Strict scrutiny

6.5.3. Durational residency (live in a state for a certain period, 15 days max) - Strict scrutiny

6.5.4. Restriction on foreign travel - Rational basis test

6.6. Right to Vote

6.6.1. Deny some citizens right to vote - Strict Scrutiny Regulate electoral process to prevent fraud - balance desirable Voter tax, property ownership requirement for voting is always UNconstitutional

6.6.2. One person one vote Can based on total population. Any legislative body of district, all districts must be about the same in population

6.6.3. The use of RACE in drawing election district lines must meet Strict Scrutiny

6.7. NO fundamental right to Education

7. VII Equal Protection

7.1. EP of Fourteenth A applies to State and local gov; EP of Fifth A applies to Federal gov

7.2. Race and National Origin

7.2.1. Strict Scrutiny

7.2.2. Prove a racial classification by 1) on the face of law 2) discriminatory impact and intent

7.2.3. Racial classification benefiting minorities? Strict Scrutiny Numerical set-asides require clear proof of past discrimination Remedy for past discrimination. i.e. Hire a white, hire a black meanwhile Educational institution MAY use race in admission decision to help minorities, if no race neutral alternative. May NOT add points Public school may NOT use race in assigning students to school Unless SS

7.3. Alienage

7.3.1. Unconstitutional if only US citizens can receive welfare/certain jobs/be admitted to the bar

7.3.2. Against undocumented alien children Unconstitutional if immigrant children has to pay for their public education, but the US citizen don't

7.3.3. Self government and democratic process - Rational basis test Against non-citizen in terms of voting, serving in a jury, being a police officer, teacher, probation officer

7.3.4. Congressional discrimination i.e. regulate immigration

7.4. Gender

7.4.1. Based on Role stereotypes NOT allowed

7.4.2. Remedy past discrimination and differences in opportunity is allowed

7.5. Non-Marital children

8. VIII First Amendment

8.1. Free speech methodology

8.1.1. Content-Based restriction must meet SS Subject Matter, Viewpoint

8.1.2. Content neutral burden meet IS Often on basis of time, place or manner

8.1.3. Gov can require a license for speech if 1) Important reason 2) Clear criteria 3) Procedural safeguards

8.1.4. Vagueness and overbreadth is unconstitutional Can regulate conduct that communicates if 1) important interest UNrelated to the suppression of the message 2) Necessary gov purpose > impact on communication

8.2. Government property

8.2.1. Types: Traditional public forum, designated public forum, Limited public forum, Non-public forum

8.2.2. Public Forums: Content based - SS; Content Neutral - IS

8.2.3. Limited/Non-public Forums: Reasonable. SS if viewpoint-based

8.3. Unprotected by the First Amendment

8.3.1. Incitement of illegal activity Substantial likelihood of imminent illegal activity, directed to causing

8.3.2. Obscenity and sexually-oriented Test Prurient Interest Patently offensive Lack serious redeeming artistic, literary, political or scientific value Zoning ordinances to regulate the location of adult bookstores and movie theaters Child porn may be completely banned Children must be used in the production Gov may NOT punish private possession of obscene material; May punish private possession of child pronography Profane and indecent speech is generally protected by the First Amendment Over the broadcast media; In school can be punished

8.4. Defamation

8.4.1. NO recovery for speech made without actual malice about public officials, public figures, or matters of public concern Actual Malice: Knowledge of falsity; Recklessness, by clear and convincing evidence

8.4.2. Public official, public figure Actual Malice -> Any damages

8.4.3. Private figure, public concern Actual Malice -> Presumed and punitive Negligence -> Actual

8.4.4. Private figure, private concern NO Actual Malice -> ANY

8.4.5. Intentional Infliction of Emotional Distress Require actual malice

8.5. Commercial Speech

8.5.1. Ad and promotion of products and services Profit motive is insufficient Unprotected: False, misleading, illegal product or service Test: Substantial gov interest; narrowly tailored

8.5.2. Freedom of association Prohibit or punish group membership Disclosure of group membership that would chill association Can prohibit group from discriminating, Unless interfere with intimate association or expressive activity Ok to prohibit male group discriminate female, but a Jew/Black group can discriminate other group

8.5.3. Freedom of religion Free Exercise Clause Free exercise clause can't challenge a Neutral law of General applicability Denial of benefit to a religious school that are provided to a secular private school must meet SS The Establishment Clause Test Discriminate against religious speech - SS Unconstitutional to sponsor religious activity in public school Gov can give assistance to parochial schools, but can't be used for religious instruction. Gov can provide parent voucher which they can use in parochial schools