CONSTITUTIONAL LAW

FEDERAL JUDICIAL POWER IMPEACHMENT: Removed for treason, bribery, and high crimes
JUSTICIABILITY & misdemeanors. Req’s maj house vote and conviction in Sen
by 2/3.
(A SPERM)
FEDERALISM
ABSTENTION: fed can’t enjoin pending st. ct proceeding.
PREEMPTION: Supremacy Clause: Q and laws/treaties made
STANDING: Req’ts: (Pickled Doughnuts Cause Reflux) Personal
pursuant to it are supreme. Express or Implied (either Fed/St
& Direct Injury; Causation; Redressibility. No Third party law mutually exclusive; st law impedes on fed objective; or
standing: EXCEPT close relationship; injured 3rd party unlikely Cong evidences clear intent to preempt). Tax: can’t pay state tax
to assert his own rts; Associational standing: indivs have out of fed treasury, but can tax private store on fed land.
standing; germane to organization’s purpose; neither claim nor
relief requires participation of indivs. DORMANT COMMERCE CLAUSE: state or local law is
unconstitutional if it places excessive burden on interstate
POLITICAL QUESTION: Will not adjudicate challenges to
commerce.
Amend’s; Foreign policy; Repub form of gov; Impeachment;
partisan gerrymandering. PRIVILEGES AND IMMUNITIES CLAUSE OF ART IV: state may
not deny citizens of other states of the privileges and
11TH AM/SOVEREIGN IMMUNITY: states can’t be sued in fed ct
immunities it accords its own citizens.
unless Fed gov’t sues; Express waiver; or Congress clearly
removes immunity; suits against state official for enforcing DORMANT CC & PRIVILEGES AND IMMUNITIES CLAUSE:
unconstitutional statute; state v. state. P&I under Article IV Commerce Clause
RIPENESS: some viol of law or when nothing to be gained with Discrim re: Civil Liberty / Burden on Interstate
actual violation. Ability to Earn Livelihood Commerce
MOOTNESS: live controversy. Except: wrongs capable of Violation unless necessary to Violation unless necessary to
repetition but evading review; voluntary cessation; class actions. achieve substantial achieve important gov’t
Discrimination

FEDERAL LEGISLATIVE POWER government interest and no interest and no less

less restrictive means to discriminatory than
POLICE POWER: none except MILD – Military; Indian
achieve objective necessary to achieve
reservations; Land (fed); DC.
objective. EXCEPT: Cong.
GENERAL WELFARE: may only tax and spend. approval or Market
COMMERCE POWER: (1) Channels of interst comm; (2) Participant
instrumentalities of IC; (3) substantial effect on IC (cumulative No application Simple balancing test.
impact for economic activity only). Violates if burdens exceed
LIMITATION: 10th Am - can’t compel st to regulate or act, but benefits.
No Discrimination

may induce w/ strings on grants if expressly stated & related to Taxes ok if:
purpose. 14th Am – cong can't create new or expand existing - Substantial nexus to
rights. Only prevent or remedy violations of existing rts if
state.
propor/congruent to violation.
- Fairly apportioned.
FEDERAL EXECUTIVE POWER
- Fair relationship to
TREATIES: Must be ratified by Sen but no Sen approval req’d to services or benefit
void. Conflicts: St. law is invalid. Fed law – last adopted provided by state.
controls. US Constitution (“Q”) – treaty invalid.
Limit – corps and aliens can’t sue under P&I.
EXECUTIVE AGMTS: No Sen approval needed. Conflicts: St. law
is invalid. Ex Agmt never valid over conflicting fed law or Q. INDIVIDUAL LIBERTIES
APPT: Pres appoints ambassadors, fed judges, officers w/ Sen STATE ACTION: req’d before Qal provisions applied to private
confirmation. Cong may vest appt authority but may not give entities. Occurs if excessive st financial entanglement or where
itself appt power. entity performs public function. Entanglement = gov’t
REMOVAL: unless limited by stat, Pres can fire exec officer. Fed authorizes, encourages, or facilitates activity.
judges removed only if impeached. Cong may limit if Bill of Rts: Selected incorporation to states under 14th Am.
independence from Pres desirable AND may only limit removal SCRUTINY
with good cause.
RATIONAL BASIS: rationally related to legitimate gov’t interest.
PARDON: only for Fed crimes, not state. Only crim liability, not
INTERMEDIATE SCRUTINY: law must be substantially related to
civil, and not for impeachment.
an important gov’t interest. Must be narrowly tailored to
VETO: within 10 days or pocket veto (if cong term changing achieve objective.
during timeframe, Pres does nothing and bill dies). No line item
veto. 2/3 vote by house and senate to override veto.

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 CONSTITUTIONAL LAW
STRICT SCRUTINY: law must be necessary to achieve a measures: ok if designed to address past discrim and diff in
compelling state interest. Least restrictive means necessary to opportunity.
achieve objective. ALIENAGE: Gen: SS. But re: self gov’t/demo process: Rational
DUE PROCESS Basis (e.g. voting, jury serv, being police or elem/sec teacher).
Undoc Alien Children: Inter Scrutiny (rt to educ).
PROCEDURAL DP
Deprivation of life, liberty or property (only if entitlement). If NON-MARITAL CHILDREN: Scrutiny: Interm.
yes, balance (1) Importance of interest to indiv; (2) ability of RT. TO TRAVEL: SS, e.g. preventing ppl from moving or
add’l procedures to increase accuracy of fact finding; (3) gov’t residency req’ts.
interest in fiscal & admin efficiency. RT. TO VOTE: SS. At large elections ok unless proof of discrim
SUBSTANTIVE DP purpose.
ECONOMIC LIBERTIES – rational basis, limiited protection. POL CANDIDACY: Fee can’t preclude indigent. Ballot access
K CLAUSE: state/local law effecting already existing Ks → inter regs must be reasonable and non discrim means of promoting
scrutiny. (1) subst impairment of K relationship; (2) whether st imp state interest.
law is designed to promote a significant and legitimate public ALL ELSE: Rational basis (e.g. age, disability, wealth/econ, sex
purpose and narrowly tailored. orientation, educ.)
TAKINGS: 5th Am provides that private property may not be FIRST AMENDMENT
taken for public use without just compensation.
RESTRICTION ON SPEECH: Content based → SS. Two types:
Taking: (1) denial of all economic value or (2) decrease of Subject matter - law restricts topic of speech. Viewpoint -
economic value that leaves no economically viable use for the restricts specific ideologies. Content Neutral → generally
property. Ct considers: the social goals; diminution in value to immediate scrutiny.
owner; and the owner’s reasonable expectations. If reduction in PRIOR RESTRAINTS: Judicial order or admin system stopping
value > promotion of pub welfare → taking.
speech before it occurs. Prelim Injunction → SS. Req’s: (1) std
Public Use: rationally related to a legitimate public purpose. narrowly drawn, reasonable & definite; (2) injunction promptly
Does not need to actually be used by public. Purpose is key.
sought; (3) prompt and final determination. Person must act
Remedy: If not, gov must pay for land or give land back + according to injunction until overturned. If in violation, no
damages.
challenge. Licenses/Permits: no discretion in licensing
FUNDAMENTAL RTS → SS. CARP SPERM: Contraception. authority. Must contain procedural safeguards like prompt
Abortion. Rt. to privacy. Procreation. Speech. determination of requests for licenses and judicial review.
Parenting/Custody. Extended family together. Rt under 1st Am.
Marriage. FACIALLY INVALID REGULATIONS: Vagueness: reas person can’t
ABORTION → undue burden. Before viability – no prohibition, tell what is prohibited/allowed Overbreadth: regulates
but reg ok so long as not an undue burden. After viability – sts substantially more speech than Q allows. Unfettered discretion:
may prohibit unless nec to protect life of mother. No partial too much power given to licensing authority. NOTE: Fighting
birth abortion. Spousal notice/consent – unQ. Parental word bans are unQ as vague and overbroad.
notice/consent for minors ok, but only if alt jud approval SYMBOLIC SPEECH: conduct that communicates. Test: Reg ok if
process.
(1) imp st. interest independent of suppression of msg; and (2)
UNKNOWN SCRUTINY: refuse med treatment and homosexual impact on comm no greater than necessary. (Int. Scrutiny)
activity. Types: Flag burning protected. Draft card and nude dancing not
NO RIGHT: physician assisted suicide; practice trade; educ. protected. Burning cross protected unless done w/ intent to
EQUAL PROTECTION threaten. Contribution limits ok; expenditure limits unQ.
Q PROVISIONS: St/Local → 14th Am. Fed → 5th Am DP LESSER PROTECTED SPEECH:
clause.
Incitement of Illegal Activity: punishable if (1) substantial
RACE/NAT’L ORIGIN: Exists if: Discrim on face or discrim likelihood of imminent illegal activity and (2) speech directed to
impact + intent. Scrutiny: SS. Set asides/quotas: req’s clear causing imminent illegality.
proof of past discrim and congruent remedy. College
Admissions: race can be a factor b/c of compelling interest of Obscenity: Test: PIPS – Prurient Interest. Patently offensive.
diversity, but may not simply add pts or have a set aside. Not ok Serious value (lack of). Prurient interest = local std of
in public secondary schools. Apportionment: consideration ok shameful/morbid interest in sex. Patently offensive = local std.
but can’t be predominant. Serious value = no redeeming artistic, literary, political or
GENDER: Exists if: Discrim on face or discrim impact + intent. scientific value based on national reasonable person standard.
Scrutiny: Intermediate. Role Stereotypes: not ok. Remedial Zoning Regs: ok to reg location and size of adult bookstores and
movie theaters in order to target secondary effects. Child porn

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 CONSTITUTIONAL LAW
may be completely banned, even if not obscene, but actual FREEDOM OF ASSOCIATION:
children must be used in production. Prohibit/Punish Group membership → SS. Req’s: AAA
PROFANE AND INDECENT LANGUAGE: gen protected, except (knowing + specific intent) (1) Actively Affiliated with group;
Broadcast Media: radio station/free network tv b/c of (2) knowing of illegal Activities; (3) specific intent of furthering
intrusiveness into home and accessibility by kids. illegal activities.
Schools: responsibility of teaching civilized discourse. Disclosure of Group Membership: if chilling effect → SS.
COMMERCIAL SPEECH: Truthful com speech always protected. Unrelated to Suppression of Ideas → SS.
False and deceptive ads not protected. Test: Interm scrutiny. (1) Prohibition of Discrimination: Qal unless interfere with intimate
serves substantial gov’t interest; (2) directly advances that association (small groups) or expressive association (discrim
interest; (3) narrowly tailored to serve that interest (need not be integral to expressive activity of group, e.g. KKK).
least restrictive)
FREEDOM OF RELIGION:
DEFAMATION: Libel and slander not protected.
Free Exercise Clause: No punishment on basis of religious
Pub official: must show falsity and actual malice. beliefs. But Free Ex can’t be used to challenge neutral laws of
Pub figure: Same as pub official. general applicability, except denial of unemployment benefits if
Private fig: if pub concern, must show falsity and negligence. If person quit for religious reasons or Amish who have rt not to
no pub concern, no malice necessary. educ children. If not generally applicable or if enacted to
discriminate → SS.
FREEDOM OF PRESS/PRIVACY: Truthful Public Info: no
Establishment Clause: Lemon test. SEX. (1) Secular purpose;
restrictions so long as info was lawfully obtained by gov’t
(2) Effect neither advances nor inhibits religion; (3) No
records.
eXcessive entanglement with religion. No discrimination
Illegally intercepted calls: media no liability so long as media against religious speech or among religions unless SS. School:
didn’t participate in illegality and re: matter of pub importance. No gov’t sponsored religious activity. BUT, religious groups
Access to Govt: gov’t may limit dissem of info to protect must be given same access to school facilities.
privacy. PUBLIC EMPLOYMENT: Public concern → balance employee's
Gov’t Papers: no req’t for public accessibility. rts as citizen against gov’t interest in efficient performance of
pub service. Not public concern → wide deference to employer
Criminal Trials: public and press have rt to attend, but may judgment. If within employee duties → punishment ok. No
be limited by overriding interest determined by judge based firing for party affil unless in policy making position.
on intermediate scrutiny.
FORUMS FOR SPEECH:
Public forums: (parks, sidewalks, etc.) regs must be subj
matter and viewpoint neutral. If not → SS. Regs must serve
imp gov purpose and leave open adequate alt places for comm.
Designated public forums: (Gov properties which gov allows
open for speech.) same as public forums.
Limited public forums: (gov properties ltd to certain groups or
dedicated to disc of limited topics). Regs ok if reasonable and
viewpoint neutral.
Non-public forums: (mil bases, outside prisons, sidewalks on
post office prop, ad space on city buses, airports) Reg ok if
reasonable and viewpoint neutral.

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 Constitutional Law Charts

EQUAL PROTECTION
Step One: What is the classification?

Step Two: What is the level of scrutiny?

Strict Scrutiny Intermediate Scrutiny Rational Basis

Law must be necessary to Law must be substantially related to Law must be rationally related to a legitimate
achieve a compelling state an important government interest. government interest.
interest.
Race Gender Alien (gov’t and demo process)
Alienage, generally Illegitimacy Congressional regulation of aliens
National origin Undocumented alien children Age
Domestic travel Disability
Voting Wealth
Everything Else
Step Three: Does the law meet the level of scrutiny?

FORUMS FOR SPEECH

Definition Neutrality Required Test
Gov’t property that is Subject and Viewpoint Narrowly tailored to serve important gov’t
Public historically open for neutral. interest and leaves open alternative channels
Forum speech, e.g. streets, of communication. Need not use least
sidewalks and pub parks restrictive alternative.
Gov’t property that could Subject and Viewpoint Narrowly tailored to serve important gov’t
Designated
be closed to speech, but neutral. interest and leaves open alternative channels
Public
which government has of communication. Need not use least
Forum
chosen to open restrictive alternative.
Gov't property limited to Viewpoint neutral. Reasonably related to a legitimate
Limited certain groups or government purpose.
Public dedicated to discussion of
Forum limited topics
Gov’t property that gov’t Viewpoint neutral Reasonably related to a legitimate
Non-Public
can and does close to government purpose.
Forums
speech

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