The 4 requirements for justiciability?

(Limit of the Judicial Power)

STANDING

* Injury (damages - personally suffered; injunctive - likelihood of future harm)

* Causation - D caused injury, so court can remedy it

* NO 3rd party standing (w/ exceptions! see bottom)

* NO generalized grievances ("taxpayer" or citizen")

     - Exception: challenging govt spending re: Establishment Clause

RIPENESS (issue when statute hasn't been enforced)

* P has been harmed, or govt action poses an immediate danger to P's interests (e.g. P will engage in specific conduct and presented with immediate danger of prosecution)

* Factors to consider

     - hardship would be suffered w/o such review (e.g. lose $, criminal prosecution)

     - Fitness of issues and record review (need more facts?)

NOT MOOT (issue when events end P's injury)

If events end P's injury, it is moot UNLESS:

* Wrong capable of repetition but evading review (e.g. ban on abortion), OR

* D voluntarily ceased, but can still do it

* Class action suit and a member still has injury

NOT A "POLITICAL QUESTION" (issue for another branch, or just incapable of judicial resolution)

* Challenges to President's conduct of foreign policy

* Challenges to impeachment and removal process

* "republican form of government clause" (re: representative govt)

* Challenges to partisan gerrymandering(?!)

THIRD-PARTY REPRESENTATION IF:

* Close relationship (doctor/patient, NOT dad w/o legal custody)

* 3rd party unlikely to assert own rights

* Organization (3 requirements):

     - Members would have standing

     - Interests germane to organization's prupose

     - Neither the claim nor relief requires participation of individual members

Justiciability problem (specifically, standing)

THIRD-PARTY REPRESENTATION OKAY IF:

* Close relationship (doctor/patient, NOT dad w/o legal custody)

* 3rd party unlikely to assert own rights

* Organization (3 requirements):

     - Members would have standing

     - Interests germane to organization's prupose

     - Neither the claim nor relief requires participation of individual members

Federal statutes adopted under Section 5 of 14A only

(advance 14A's purpose... i.e. 1964 Civil Rights Act, Americans with Disabilities Act...)

TREATIES (President strikes deal, ratified by Senate)

#1. US Constitution

#2. Treaty - Federal Statutes (last in time controls

#3. State laws

(note: Congress can repeal treaty w/o President's signature)

EXECUTIVE AGREEMENTS (signed by President)

#1. US Constitution

#2. Federal Statute

#3. Executive Agreement

#4. State Laws

Express Preemption

Implied Preemption:

* they are mutually exclusive

     - exception: states may set stricter environmental standards unless Congress explicitly prohibits this)

* state law impedes achievement of federal objective

* Congress evidences clear intent to preempt state law (e.g. immigration)

Privileges and Immunities Clause of 14A applies only to interstate travel - restrictions undergo STRICT SCRUTINY

Privileges and Immunities Clause of Article IV:

"No state may deprive citizens of other states of the privileges and immunities accorded to its own citizens"

Must be necessary to achieve an important government purpose (heavy burden, no less discriminatory alternative)

* Does it affect their ability to earn their livelihood?

NOT protected: corporations and aliens

No other Congressional or market-participant exception!

[remember to test the dormant commerce clause too]

Might violate dormant commerce clause. (If not discriminatory) it must not "unduly burden" interstate commerce:

If State Taxation:

* may not tax simply to help in-state businesses (discrimination against interstate commerce)

* may only tax activities if they have a substantial nexus to state (unfair to tax a company that barely does anything in it)

* taxing interstate businesses must be fairly apportioned (don't tax business unfairly when it is only one of 50 states it does business in)

* [tax should fairly relate to services or benefits provided by the state!]

When can Congress apply Xnal norms to private conduct?

(not state action per se)

Also, which "private conduct" is considered state action?

Statutes under 13A to prohibit race discrimination

Commerce Power

NOT Section 5 of 14A (applies only to states)

Private conduct must comply w/ Xn WHEN:

Public function exception - performing a task traditionally, exclusively done by govt (i.e. white primary cases)

Entanglement exception - where govt affirmatively authorizes, encourages, or facilitates Xnal activity (i.e. leasing to an organization (is profiting)...)

- disfavored: racial discrimination

- $$$ funding BY ITSELF insufficient (e.g. private school 99%-govt funded)

Prerequisites:

Denial of procedural due process (should have hearing, knowledge of charge/notice...)

Deprivation of "liberty" or "property":

- loss of significant freedom under Xn or statute

- an entitlement not fulfilled? (e.g. business license, right to redress under an antidiscrimination statute)

Government fault

- must be more than negligence

- must be an act (not omission)

(emergency may exculpate govt)

If above are true, apply balancing test:

* Importance of interest to individual

* Government's interest

* Ability of additional procedures to increase accuracy of the fact finding

Test for a government taking?

(Constitutional Law)

Is there a taking?

Is it for a "public use"? (condemning cheap houses and giving land to private company for downtown revitalization can be ok!)

Just compensation? (measure loss to owner only!)

Regulations on development? Benefit to govt mst be roughly proportional to burden imposed... otherwise it's a taking

Temporary, reasonable denial of use of property? Not a taking

[new owner can challenge regulation that existed before bought property!]

No state shall impair the obligations of existing contracts.

Contract w/ the govt? Strict scrutiny (looks fishy)

If it does, then "intermediate scrutiny":

* Substantial impairment of party's rights under the contract

* Rz and narrowly tailored means of promoting important legitimate public interest (oy!)

It concerns self-government and the democratic process

(e.g. for voting, serving on jury, being police officer, probation officer, K-12 teacher) (NOT notary public)

Applies only to states - Congress can discriminate under a rational basis standard!

A law prohibits all demonstrations in a city park.

Constitutional?

"This is a content-neutral law burdening speech, so we apply intermediate scrutiny."

? Hmm... but this is a public forum, can't prohibit speech outright, yes? Perhaps a time, place, manner regulation...

(If it were content-based, we would use strict scrutiny.)

What are the requirements for government to exercise prior restraints against speech? (This includes TROs and preliminary injunctions against speech)

What are the requirements for government to require a license to distribute/make speech?

Prior restraints:

* Strict scrutiny!

* Standards should be narrowly drawn, Rz and definite ("procedural safeguards")

[and remember collateral bar rule - MUST obey court orders even if unRz on their face!]

Government can require license, ONLY if:

* Important reason

* Clear criteria leave almost no discretion

* Procedural safeguards (e.g. prompt determination, judicial review)

* Important interest unrelated to suppression of message

* Impact on communication is no greater than necessary to achieve govt's purpose

Rule for content-based restrictions?

And what about for these exceptions: obscenity, commercial speech, defamation?

Strict scrutiny!

Obscenity is unprotected. Requirements:

* Appeal to prurient interest (local/community standard) ("shameful or morbid" interest)

* Must be patently offensive under the law prohibiting obscenity (what statute defines)

* Taken as a whole, lacks serious redeeming artistic, literary, political or scientific value (national standard!)

Commercial speech can be regulated (not banned), if meets intermediate scrutiny:

* Narrowly tailored, but doesn't need to be least restrictive alternative

(Exceptions that may be prohibited: inherently risks deception e.g. lawyer solicitations... false and deceptive ads... illegal activity)

Defamation (see Xnal limits in tort rules), PLUS THIS re: speech about private person on matter of private concern:

* Unclear... burden of proof on D to prove truth. We presume damages w/o having to prove malice. (hmm... seems to conflict w/ tort rules regarding simple slander)

Applicable in public forums and limited public forums.

Time, place, and manner regulations must be:

narrowly tailored to serve an important/significant government purpose and leaves open adequate alternative places for communication

(For non-public forums like court trials: CAN regulate if viewpoint neutral and Rz (legitimate interest))

Non-public forums are govt properties that it can and does close to speech (interesting, this includes airports...)

Test for Free Exercise Clause?

For Establishment Clause?

Free Exercise Clause:

Cannot "prohibit the free exercise" of religion

CANNOT be used to challenge a neutral law of general applicability (but IF intent, then strict scrutiny)

Establishment Clause:

Lemon test (SEX!)

* Secular Purpose

* Effect must neither advance nor inhibit religion (e.g. display symbolically endorsing religion)

* No eXcessive entanglement w/ religion

Sovereign immunity?

Justiciable case? (Standing, Ripeness, Mootness, Political Question)

Government conflicts

* Congressional action: enumerated power?

* State action: dormant commerce clause?

* Local action: Police power?

Individual Rights

* State action?

* [Free Speech]

     - Content vs. conduct? Content-based vs. content-neutral?

* Levels of scrutiny

     - Argue over these as well

     - Remember who bears burden of proof