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California Bar Exam Outlines
I. Justiciable Case or Controversy
Standing (injury or immediate threat of, causation, and redressability). Judicial power extends to “cases and controversies”, so Congress can make no law requiring Art III courts to render advisory opinions, hear collusive actions or perform administrative functions; can delineate jurisdiction though.
Associational Standing. Must show: (1) members would have standing to sue on their own; (2) interests are germane to the organization’s purpose; (3) no need for member participation in claim or relief. Otherwise 3rd party standing only if close relationship leads to harm because her relationship with 3rd parties is affected (Drs losing biz if abortion banned)
No generalized grievances. Exception: Taxpayer Standing: (generally establishment clause) Must show: (1) statute enacted under Congress’s taxing and spending power; (2) exceeds some specific limitation on power
Ripeness: no pre-enforcement (fitness of the issue, question of hardship if review is denied)
Mootness: actual controversy (injury) must exist at all stages of lawsuit, except: wrong capable of repetition but evading review, voluntary cessation, class action)
Political Question: Fed Cts will not adjudicate what others political branches shall resolve
Abstention: unsettled question of state law; pending state prosecution
Eleventh Amendment: Fed Cts barred from seeing suits against states by private parties or foreign governments. (see below) Exceptions, (1) waiver, (2) abrogation under § 5, 14th Am, (3) suits for injunctive relief against state officers. (and the US)
Adequate Independent State Grounds: 2 grounds; 1 state (independent and adequate) 1 federal; reversal on federal ground will not change the result and opinion would be advisory, so SupCt must abstain. Also when St law is unsettled.
Form of Sup Ct review
Certiorari: only form of review for cases from StCts and FedCts; 4 justices vote
Appeal: must review appeals to 3-judge Fed District Cts. (Congress may > or <)
Original: Between states, cases involving ambassadors or public ministers. Note: US vs States also has jurisdiction, but concurrent with Fed Cts. (Not amendable by Congress)
Sovereign immunity: FedCts and St Cts may not hear suits against state governments. (a) 11th Am: no suits a/ states in Fed Cts; (b) no suits against states in StCts of Fed Agencies
Exceptions to Sovereign Immunity:
Express waiver by state (Fed Gov also has immunity)
Laws adopted under Sec 5 of 14th Am against recognized constitutional violation; Fed Civ Rts law Ok, not laws under commerce clause or spending power.
Fed Gov (US) can sue states
Bankruptcy procedures and against local govs.
Suits against offices for injunctive relief or damages not from treasury
Abstention: FedCts cannot enjoin pending state procedures, appeals in StCts must be exhausted before bringing to FedCt unless harassment.
II. What Kind of Constitutional Issue?
Separation of Powers – Branches of Government
Judicial (justiciability requirements + final judgment rule)
Executive (foreign and domestic powers and limitations, especially executive privilege)
Legislative (sources of power and limitation)
Federal Legislative Powers
Sources of power: C may act under express or implied authorities
Commerce Clause: Congress may regulate (i) the channels and instrumentalities of interstate commerce, and (ii) activity that has a substantial effect on interstate commerce.
Economic activity: conceivable rational basis for concluding activity in the aggregate substantially affects interstate commerce.
Non econ act: regulated activity has a substantial economic effect on interstate comm.
Only Congress can regulate foreign commerce, but not tax exports.
Taxing & Spending: Congress may tax and spend for the general welfare, not need based on enumerated power. Tax measures are valid it (a) reasonably related to revenue production, or (b) Congress has power to regulate the activity.
Taking Property (below)
Citizenship and War: plenary powers
Necessary and Proper Clause: Congress may use any means not prohibited by the constitution to carry out its authority.
10th Am: All powers not granted to the US, nor prohibited to states, are reserved to the states. So, Congr cannot compel state regulatory or legislative action (commandeering). But, Congress can induce state gov. action by putting strings on grants, so long as (i) clearly stated (ii) related to spending program’s purpose, and (iii) not unduly coercive. Also OK to prohibit harmful commercial activity (DMV selling info)
No police power exc Property Clause: DC, Military Fed Lands, Reservations
Investigative pwr (implied): limited to matters on which it can legislate.
Delegation pwr: ample, but cannot delegate power to itself or it officers to enforce or implement law. Upheld if includes intelligible standard for delegate to follow.
Federal Executive Power
War: President has no power to declare war, but may act militarily in actual hostilities against the US w/out a congressional declaration of war under his broad power as Commander-in-Chief to use American troops in foreign affairs. Congress may limit by military appropriations.
Foreign Relations: President has paramount power to represent the US in foreign relations.
Treaties: President has power to enter treaties w/ the consent of 2/3 of the senate, can terminate by himself though. Treaties prevail over then existing Fed statutes and actual or future state laws.
Executive Agreement: President has power to sign an executive agreement with the head of a foreign country. No Senate consent required. They prevail over state law but not over Fed statutes.
Domestic affairs: appointment and removal power. Congress or its agents can never make appointments of Fed Gov officers.
Executive privilege: presidential communications presumptively privileged, can only yield to a demonstrated need; subpoena to Pdt does not violate separation of powers.
State Interference w/ Federal System
Preemption: Under the supremacy clause, a federal law is the supreme law of the land, and thus may preempt or supersede state law. (express or implied). It is implied when:
Fed and St Law are mutually exclusive (directly conflict); more stringent St standards OK
St law impedes achievement of Fed objective (ok if St Law more restrictive)
Clear intent by Congress to occupy entire field, eg, immigration
Inter governmental immunity: states cannot burden by tax or regulation. Fed Gov cannot interfere with state government functions; and vice versa. General application laws with incidental burden on State Ok (eg: minimum wage)
State taxation: st tax system cannot help local businesses w/o violating Commerce unless:
Non discriminatory against out of state
Substantial nexus to the state
arises from services or benefits provided by state
No ad-valorem taxes to goods in the stream of interstate commerce
Dormant Commerce Clause: state and local laws are unconstitutional if they (a) discriminate against out of staters, or (b) place an undue burden on interstate commerce.
Discrimination against out-of-staters → presumed undue burden on interstate commerce, unless it is necessary to achieve an important non-economic state purpose (ex: bait parasite case)
Exceptions: (1) congressional approval, (2) market participant, (3) gov function.
Absent discrimination → if the gov is unduly burdening interstate commerce → balance the benefit to the state against the burden on interstate commerce. (Mudguard case)
Privileges & Immunities Clauses, art. IV: no state may deny to citizens of another state the privileges and immunities of its own citizens. Violated where state regulation discriminates against individuals with regard to important economic activities or fundamental rights unless it is necessary to achieve an important government interest and there are no less restrictive means. Not subject to market participant exception; requirement to use local workers in gov contracts violates Art IV
14th Amendment: states cannot deny its citizens rights of national citizenship. Applies to new citizens as violation of right to travel only
DOES THIS STATE OR LOCAL GOVERNMENT’S ACTION
DISCRIMINATE AGAINST OUT-OF-STATERS? YES NO Violates the Dormant Commerce Clause if it places a burden on interstate commerce unless it is necessary
to achieve an important government purpose. Exceptions:
a) Congressional approval of discrimination. b) Market participant exception. Violates the Privileges and Immunities Clause of Article IV if it discriminates against individuals with regard to important economic activities or fundamental rights unless it is necessary to achieve an important government purpose. Violates the Dormant Commerce Clause if the government is burdening interstate commerce, balance the benefit to the state against the burden on interstate commerce (if the benefit exceeds the burden, the law is upheld; if the burden exceeds the benefit, the law is struck down). “unduly burdens” Privileges and Immunities Clause of Article IV is inapplicable.
Dormant Commerce Clause Privileges and Immunities Clause Does not require discrimination against out-of-staters in order to apply
Requires a burden on interstate commerce
Corporations and aliens can sue under it
Exceptions: Congressional approval and the market participant exception
Requires discrimination against out- of-staters in order to apply
Requires discrimination with regard to fundamental rights or important economic activities
Corporations and aliens cannot sue under it
No exceptions (no mkt participant exc)
When discriminatory, both subject to strict scrutiny “necessary to achieve important gov interest”
III. Individual Rights
State Action – the Constitution only applies if there is action by a state or local gov officer or private individual whose behavior meets the requirements for state action. E.g. individual or entity perform exclusive public function or has significant state involvement in their activities.
Exceptions: private action can be regulated by (i) 13th Am Enabling Clause to prohibit private race discrimination, (ii) commerce power.
Private conduct subject to Constitutional regulation when:
Performing a task traditionally and exclusively done by government
Entanglement: affirmative authorization, encouragement or facilitation of unconstitutional activity
Speech (1st Am)
Scrutiny: if content based, strict; if content neutral, intermediate. Eg. not OK to tax press based on content
Prior Restraint: Stopping speech before it occurs always strictly scrutinized (1) gravity of societal harm justifies restraint; and (2) necessary to prevent harm. Licensing scheme only if important reason, criteria leaves minimum discretion and procedural safeguards with narrowly drawn, reasonable and definite standards, ability to seek injunction and prompt and final determination of validity of restraint.
Vagueness & Overbreadth: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. Regulations restricting fighting words tend to be found vague and overbroad.
Symbolic speech is protected (e.g. flag card burning, cross burning (unless a threat. Can be restricted if gov has important interest unrelated to suppression of message and impact on communication no greater than necessary to achieve gov purpose (draft card).
Unprotected speech (allowed content regulation)
Incitement of illegal activity if substantial likelihood of imminent illegal activity
Obscenity if (1) appeals to prurient interest, (2) patently offensive under the law, (3) taken as a whole, lacks serious redeeming, artistic, literary, political or scientific value.
Commercial speech that inherently risks deception or ads for illegal activity. Regulation of commercial speech that is not misleading or deceptive subject to intermediate scrutiny: (i) serve an important government interest, (ii) directly advance it; and (iii) narrowly tailored
Places Available for Speech – Time Place and Manner regulations
Traditional Forums (public property traditionally associated to Free Speech e.g. sidewalks parks): and Designated PFs (public property gov opens to speech) TPM regulations must be (i) content neutral; (ii) narrowly tailored to serve important government interest; and (iii) leave open adequate alternative places for communication (not less restrictive).
Limited Public Forums (public property gov. opens to speech on limited basis) and Non-Public Forums (military bases, airports, schools): gov may regulate so long the regulation is viewpoint neutral and reasonably related to the purpose of the non public forum, which shall be a legitimate gov purpose.
Freedom of Association:
laws that prohibit or punish membership in a group must meet strict scrutiny. Must prove that the person (1) actively affiliated, (2) knowing of its illegal activities, (3) with the specific intent to further those activities.
Laws that require disclosure of members in way that would chill association also strict scrutiny.
Law can prohibit group to discriminate exc interference with its purpose or expressive activity (Boy scouts can exclude gays)
Establishment Clause – When no sect preference in the regulation, the Lemon test: (1) law must have a secular purpose, (2) neither advances nor inhibits religion, (3) no excessive entanglement w/ religion.
Free exercise clause: Gov cannot punish, deny benefits or impose burdens based on religion. Any regulation of religious conduct subject to strict scrutiny under DP
Can’t be used to challenge a neutral law of general applicability that incidentally burdens religion.
Ct may question sincerity of belief but not truth.
Retroactive Legislation – Contracts Clause
Impairment of Contract: no state shall retroactively or substantially impair the obligation of contracts exc important and legitimate interest and narrowly tailored. (Fed Gov can)
Interference w/ private Ks → intermediate scrutiny;
State interference with gov Ks → strict scrutiny.
Retroactive civil liability need only meet rational basis review
Equal Protection (14th Am) (applies to the fed gov through the due process clause of the 5th Am)
Levels of Scrutiny
Strict – compelling state interest and means necessary to achieve state interest
Intermediate – important state interest and means substantially related
Rational basis – legitimate state interest and means rationally related
Fundamental rights: 1st Am, travel, voting, privacy → strict scrutiny
Classification (on its face, or if facially neutral → discriminatory impact and intent. Intent can be shown by application if law allows any discretion)
Suspect – race and alienage → strict scrutiny
Quasi suspect – gender and illegitimacy → intermediate scrutiny
Other classes – wealth, age, disability, sexual orientation → rational basis
Special issues in classifications.
Alienage subject to rational basis test when concerns self government and democratic process, or comes from Congress.
Gender classifications to remedy past discrimination and ≠ opportunities OK
Right to vote: Malapportionment of electoral districts violates EP when suppresses voting power of minorities
Procedural Due Process (14th Am)
Has the government deprived a person of life, liberty (a significant freedom secured by the Constitution or statute), or property (an entitlement to a continued receipt of a benefit).
Negligent deprivation does not amount to DP violation, at least recklessness or “shock the conscience”, or failure to protect from privately inflicted harms
What process is due? Opportunity to object before a neutral, fair decision maker. Balance: (1) importance of interest to individual, (2) ability of additional procedures to increase the accuracy of the fact finding; and (3) gov. interest in efficiency
Process at least should provide review before fair and neutral decision maker.
Substantive due process (14th Am) – does the gov have an adequate reason to take away a person’s life, liberty or property (fundamental rts) → generally must meet strict scrutiny.
Economic or other non fundamental liberties → rational basis test (not arbitrary)
Taking → public purpose (broad) + just compensation (loss to owner value - FMV)
Taking possession is always a taking
Gov must take for public use, reasonable belief of benefit to the general public.
Regulatory taking only if leaves no reasonable economically viable use of property or unjustified by benefit proportionate to burden imposed. To differentiate from exercise of police power not requiring compensation, consider social goals, diminution of value to owner and if regulation substantially interferes with distinct investment backed objective.
Abortion → can’t place an undue burden on the ability to obtain an abortion
Rights triggering strict scrutiny
Right to marry
Right to procreate
Right to custody of children
Right to keep family together
Right to control raising of children
Right to purchase and use contraceptives
Right to travel
Right to vote
Freedom of speech (covered under 1st Am)
Freedom of association (covered under 1st Am)
Free exercise of religion (if law burdening religion is not a neutral law of gral applicability) (1st Am) Non fundamental rights (Only rational basis review)
Right to practice a trade or profession
Right to physician-assisted death
Right to education
CONSTITUTIONAL AMENDMENTS SUMMARY ARTICLE IV § 2. INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE: states may not discriminate against non residents
- Free speech
- Due process
- Implied freedom of association
- Protection against unreasonable search and seizure (St)
- Exclusionary rule (St)
- No self incrimination (St)
- Double jeopardy (St)
- No taking of private property
- Prohibition of jury trials w/o indictment (not applicable to States)
SIXTH AMENDMENT (St)
- Assistance of counsel in felonies and misdemeanors fined w/ imprisonment
- Speedy trial
- Public trial
- Jury trial
- Right to confront witnesses
- Compulsory process to obtain witnesses
- Right to jury trial in common law (civil) suits > $20, both P and D (not applicable to States)
- Cruel and unusual punishment (St)
- Prohibition against excessive bail (not clear if applies to States)
- All powers not granted to Fed Gov belong to the states
- Spending powers
- No commandeering of state officials
Prohibition of Federal Courts to hear cases of citizens of a state (private party) or foreign government claims against state governments
THIRTEENTH AMENDMENT (Slavery)
- Individuals may not discriminate on the basis of race
- Prohibition of acts containing badges of slavery
FORTEENTH AMENDMENT (Due Process binds states not Fed Gov which is bound by 5th)
- States cannot deprive life, liberty or property w/o DP (1st, 4th an 6th)
- Self incriminating statements only admissible if voluntary
- Burden of proof on guilt beyond reasonable doubt
- Privileges and immunities from citizenship cannot be deprived by states
- Prohibition against unnecessarily suggestive identification.
- Government cannot deny right to vote based on race (Fed and St)
TWENTY FIRST AMENDMENT
- State control over liquor
CONSTITUTIONAL LAW 2/5/16 pg 6 of 6
o a continued receipt of a benefit).
Substantive due process (14th Am) – does the gov have an adequate reason to take away a person’s life, liberty or property (fundamental rts) → generally mu