CONSTITUIONAL LAW

D. Jurisdiction of the Supreme Court

1. Original Jurisdiction
The Supreme Court has original jurisdiction in all cases affecting ambassadors, public
ministers, consuls, and those in which a state is a party, but Congress has given
concurrent jurisdiction to lower federal courts in all cases except those between states.
2. Appellate Jurisdiction
The Supreme Court has appellate jurisdiction in all cases to which federal power
extends, subject to congressional exceptions and regulation. Cases can come to the
Court by one of 2 ways:
a. Writ of Certiorari- Most Cases
The Supreme Court has complete discretion to hear cases that come to it by
certiorari.
The cases that come by certiorari are:
1) Cases from state courts where (i) the constitutionality of a federal statute,
federal treaty, or state statute is in issue, or (ii) a state statute allegedly
violates federal law.
2) All cases from federal courts of appeals.
b. Appeal-Rare Cases
The Supreme Court must hear cases that come to it by appeal. These cases are
confined to decisions by 3 judge fed district court panels that grant or deny
injunctive relief.
E. Constitutional and Self-Imposed Limitations on Exercise of Fed Jurisdiction-“Strict
Necessity”
Whether a case is justiciable (i.e. a fed court may address it) depends on whether there
is a “case or controversy” requirement, there are other limitations on fed court
jurisdiction.
1. No Advisory Opinions
There must be a specific present harm or threat of specific future harm. Federal courts
can hear actions for declaratory relief if there is an actual dispute between parties having
adverse legal interests. Complainants must show that they have engaged in (or wish to
engage in) specific conduct and that the challenged action poses a real and immediate
danger to their interests. HOWEVER, the federal courts will not determine the
constitutionality of a statute if it has never been enforced and there is no real fear that it
ever will be.
2. Ripeness-Immediate Threat of Harm
A plaintiff is not entitled to review of a statute or regulation before its enforcement unless
plaintiff will suffer some harm or immediate threat of harm.
3. Mootness
A real controversy must exist at all stages of review. If the matter has already been
resolved
D. Congressional Veto of Executive Actions Invalid
A legislative veto is an attempt by Congress to overturn an executive
agency action without bicameralism (i.e. passage by both houses of
Congress) or presentment (i.e. giving the bill to the President for his
signature or veto). Legislative vetoes of executive actions are invalid.
III. THE EXECUTIVE POWER “Separation of Powers”
A. Domestic Powers
1. Appointment and Removal
a. Appointment Powers
The executive appoints “all ambassadors, other public ministers
and consuls, justices of the Supreme Court, and all other officers
of the United States whose appointments are not otherwise
provided for,” with advice and consent of the Senate. Congress,
however, heads of departments. Congress itself may not appoint
members of a body with administrative or enforcement powers.
b. Removal of Appointees
1) By President
The President can remove high level, purely executive officers
(i.e. cabinet members) at will, without any interference by
Congress. However, Congress may provide statutory limitations
(i.e. removal only for good cause) on the President’s power to
remove all other executive appointees.
2) By Congress
Congress may remove executive officers only through the
impeachment process.
2. Pardons
The President may grant pardons for all federal offenses but not for
impeachment or civil contempt. The pardon power cannot be limited
by Congress.
3. Veto Power
If President disapproves (vetoes) an act of Congress, the act may still
become law if veto overridden by 2/3 vote of each house.
i. Line Item Veto Unconstitutional-all or nothing.
4. President and Congress- Internal Affairs
a. If President acts within the express or implied authority of
Congress, his authority is at its maximum and his actions likely
valid.
b. If President acts where Congress is silent, actions will be upheld
unless it usurps the power of another gov’t branch or prevents
another branch from carrying out its tasks.
 c. If President acts against the express will of Congress, action
likely invalid.
5. Power to Prosecute
Congress can't require criminal prosecution (BILL OF ATTAINDER);
done by Executive officer.
B. Executive Privilege/Immunity
1. Presidential privilege to keep nat'l security secrets confident'l.
 Exception: Pres. communications can be gotten by prosecution where
need demonstrated.
2. Pres. absolute immunity from civil damages for actions within official
responsibilities, ONLY for suits based on actions taken while in office not
before. Aides who have exercised discretionary authority in a sensitive
area may share the immunity for suits bought concerning that area.
C. Impeachment - MAJ House vote to bring charges; 2/3 Senate to convict
& remove. Pres, VP and All civil officers subject to it.
→ Impeachment (bringing of charges) grounds include treason,
bribery, high crimes & misdemeanors

PART 2: THE FEDERAL SYSTEM

IV. RELATIVE SPHERES OF FEDERAL AND STATE POWERS

A. Exclusive Fed Powers
Ltd to feds by Constn expressly (i.e. treaty power, coinage of $) or
impliedly bc nature of power is such that it can be exercised only by Feds
(i.e. declaring war).
B. Exclusive State Powers (anything not delegated to fed)
→When state regulates something it's b/c it has authority to do so
under its police powers to regulate health, safety, welfare unless
violates Constn
C. Concurrent Fed/State Power (Supremacy Clause)
1. State & fed laws conflict (inconsistent), fed wins (even adm.
regs)
2. Fed wins over a state law preventing achievement of a fed
objective
(license w/held despite disch. J in bankruptcy)
3. Preempted if fed meant to occupy field even if nonconflicting
(check comprehensiveness; is there an agency created to administer?)

XX. Freedom of Speech and Assembly

1. Content vs. Conduct
Content regs on these rights forbid communication of certain ideas.
Conduct regs deal w/ conduct associated with speaking, such as the
time of speech, sound level).
 a. Content
It is presumptively unconstitutional to place burdens on speech
because of its content except for certain categories such as
obscenity, defamation. Content-neutral speech regs generally are
subject to intermediate scrutiny {i.e. they must advance important
interests unrelated to the suppression of speech and must not
burden substantially more speech than necessary to further those
interests}.
b. Conduct
Conduct related to speech can be regulated by content-neutral
time, place, and manner restrictions. Additionally, all regulations of
speech are subject to the following restrictions:
2. Reasonableness of Reg
a. Overbroad Regulation Invalid (covers more speech than neces.)
If a regulation of speech or speech-related conduct punishes a
substantial amount of protected speech in relation to its
plainly legitimate sweep {i.e. a regulation outlawing all 1st Amend
activity in an airport terminal; a reg prohibiting all canvassers
from going onto private property to promote ANY cause without
first obtaining a permit) the reg is facially invalid (it may not
be enforced against anyone-even a person engaging in activity
that is not constitutionally protected) UNLESS a court has
limited construction of the reg so as remove the threat to
constitutionally protected expression. If the regulation is not
substantially overbroad, it can be enforced against persons
engaging in activities that are not constitutionally protected.

b. Void for Vagueness Doctrine

Regs void for vagueness if no clear notice of what is prohibited
(may violate Due Process Clause).

c. Can’t Give Officials Unfettered Discretion

There must be defined standards for applying the law. If a
statute gives licensing officials unbridled discre, VOID on face,
and speaker may ignore the statute. If standards are included,
cant ignore statute, must apply for permit and if denied,
challenge on 1st Amend grounds.
3. Scope of Speech
Includes freedom NOT to speak; gov’t can't you to salute flag or force
symbol/slogan on you or pledge. Freedom of speech extends to
symbolic acts undertaken to communicate an idea (i.e. wearing black
armbands to protest war). Intermediate scrutiny also applies to
symbolic speech.
→Can’t be compelled to subsidize private messages with which they
disagree (i.e. while lawyers may be compelled to pay bar dues, can’t be
 compelled to pay sums to such private associations that will be used to
support political views they don’t endorse). Exception: University fees.
D. Content Neutral Restrictions
(Time, Place & Manner - Regulation of Conduct)
1. Public Forums (streets, sidewalks, parks)
→ Reg. permissible if content neutral; rationally tailored to
serve significant (IMPORTANT) govt interest; leaves open alternative
channels of communication
a. Neutral on its face and as applied
b. Signif./impt. met w/ every legit govt interest
2. Nonpublic Forums (military bases, schools, govt workplace)
-> Reg. valid if viewpoint neutral and reas. related to legitimate
govt purpose
a. Can forbid if dangerous, disruptive (keep to classroom agenda)
(high school speech) (school paper)
3. Private Forums (homes)
-> Govt can adopt reas. regs to limit access to private forums
(solicitations)
-> EVEN IF REG. MEETS TIME, PLACE, MANNER STILL COULD BE OVERBROAD,
VAGUE OR TOO MUCH DISCRETION!

E. Content Based Speech Restrictions

(Unprotected Speech-Regulation Based on Content)
-> Must be narrowly tailored to achieve a compelling govt interest
(usually struck)
Unprotected Speech (Compelling Interest) F I C O D
1. Inciting Imminent Lawless Action
Concretely related to unlawful conduct NOW; illegal conduct likely;
speaker intended to cause it (clear & present danger imminent lawless
action)
2. Fighting Words
Trigger to violence addressed to someone; so abusive likely to
incite immediate physical retaliation (most usually overbroad/vague on
MBE)
3. Obscenity (Rule of 4 S's: SEXY, make society SICK, judged by
right STANDARDS, lacks SERIOUS value)
a. Describes or depicts sexual conduct that, taken as a whole by
the average person: appeals to the prurient interest in sex, using a
community standard, is patently offensive and an affront to contemporary
communcity standards & lacks serious value using a nat'l reas. person
standard (educational, scientific, artistic, political)
b. Patently offensive to average community member (not
ultrasensitive)
c. Can regulate obscenity indirectly by zoning (zone adult theaters
together/apart); child pron prohibited. Can't ban private poss'n
obscene material
4. Defamatory Speech
Public official/figure or public concern, P must prove defamation +
1st Am requires prove falsity & some degree of fault
5. Commercial Speech - False Advertising
a. If truthful & not misleading - protected
-> Can be banned/regulated if misleading; pertains to illegal
conduct; AND if the reg. serves a SUBSTANTIAL govt interest, directly
advances that interest and NARROWLY TAILORED to serve the interst
(suppressed no more than reas. necessary)
b. Substantial govt interests: cigs, whiskey, gambling

F. Prior Restraints (b/4 Speech occurs)

Must show special societal harm. Requires narrow, reas. definite
standards; injunction promptly sought; prompt & final determination of
restraint validity

G. Freedom of the Press (no greater freedom than citizen)

Can't refuse to reveal sources (unless statute) but can't be s/to
special newspaper tax. More reg of TV & radio to protect rts of
viewers/listeners

II. FREEDOM OF ASSOCIATION & BELIEF (Implied 1st Am)

Govt can't prohibit politically unpopular groups or unduly burden
right to belong to them. Can infringe if compelling state interest
(unrelated to idea suppression) and is least restrictive means of
protecting the govt interest

A. Electoral Process. Laws re: elections; can limit $ to candidate

(corruption, not ballot referendum.

B. Public Employment & Association

1. Restraints on Conduct
Can't fire public e/ee expressing views unless disrupts e/mt
policies or authority. Can't fire for party affiliation, political
philosophy. EXCEPTION: high level govt officers/advisors
(policymakers)
2. Loyalty Oaths. OK but can't prohibit Communist Party membership
or abstention from govt overthrow (EXCEPT unlawful overthrow OK); can't
require support flag
3. Association Disclosure. Only if relevant to e/mt or benefit
sought; can still invoke 5th Am.

III. FREEDOM OF RELIGION

A. Free Exercise Clause

1. No punishment of Beliefs
 Need not be an organized religion. Can inquire into your sincerity
but NEVER the validity or truth (under strict scrutiny could impose if
compelling but has never found)
2. No religious exemption for gen'l conduct regulation
Only challenge if specifically designed to interfere w/ religion.
If gen'l doesn't matter burdens relig. conduct
a. EXCEPT: can't refuse unemploymt benefit if quit for religious
reasons & no required school attendance Amish for Free Ex. & fundamental
right to educate
b. Across board legit rule is enforceable (no snakehandling)

Exam Tip: To summarize, the Free Exercise Clause prohibits gov’t interference w/ religious
beliefs, but it generally does not prohibit reg of conduct. If the gov’t action regs general
conduct-including religious conduct- its valid.{i.e. banning any use of peyote is valid even
though a group’s religious beliefs require its use during its ceremonies}. Only exceptions:
rules about unemployment compensation and education of Amish children.

B. Establishment Clause (prohibits laws respecting the establishment of

religion)
1. Sect Preference: Valid only if narrowly tailored to compelling
interest (unlikely that gov’t will ever have a compelling interest in preferring one religious
group). MUST TREAT ALL ALIKE.

2. No Sect Preference: If reg has no sect preference its VALID if has secular purpose, has a
primary effect that neither advances nor inhibits religion (neutral primary effect) and
produces no excessive govt entanglement w/ religion.
a. Cases unconnected to Financial Aid or Education
Rule: Generally law favoring/burdening religion or specific relig. group invalid{i.e.
exempting certain religious groups from state registration requirements}; BUT law
favoring or burdening large society segment that HAPPENS to include relig. groups is OK
(i.e. A Sunday closing law).
b. Rule applied strictly when govt $ aid to relig. institutions
(1) College/hospitals: OK, if aid requires use for non relig purpose and recipient agrees.
(2) Grade & high school: Usually found to have a secular purpose but fails other parts of
the test. Look for TOO MUCH ENTANGLEMENT!
→Recipient Based Aid: gov’t may give aid $ to a defined class of persons as long as
the class is defined without reference to religion or religious criteria. Such a program
is valid even if most recipients use it to attend a religious school.
c. Religious Activities in Public Schools: Public school sponsored religious activity invalid
but accommodation of religion is OK (if school open to other groups meetings during non school
hours can’t deny meetings of religious groups bc religion will be discussed). NO bible reading,
prayer or 10 Commandments!