* Constitutional Law *

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1. ** The Requirement for Cases & Controversies  

   1. Standing:  Whether the P could bring a case to the court (In order for the P to bring the case to the court against the D, the P must meet three elements as below) 

      1. Three elements of Standing 

         1. Injury – The P must allege and prove that he himself or she herself has been injured or imminently will be injured. The injury must be particularized and concrete

            1. The P seeking injunctive relief (i.e., a court will issue an order for the D to stop committing one or more specified actions)  or declaratory relief (i.e., a court which determines the rights of parties without ordering anything be done or awarding damages) must show a likelihood of future harm

         2. Causation – The P must allege and prove that D caused the injury

         3. Redressability– The P must allege and prove that the favorable court decision is likely to remedy his or her injury **

      2. Third Party Standing: The court does not allow Third Party Standing (i.e., A party filing a lawsuit or asserting a defense on behalf of the rights of the third parties where the rights are asserted) 

         1. Three Exceptions to the Third Party Standing (Please note that the Third Party must meet the above three elements of Standing) 

            1. Close or Special Relationship between the P and the injured party (e.g., Doctor – Patient)

            2. Injured party is unlikely to be able to assert his own rights 

               1. Example) Law criminalizing distribution of contraceptives to unmarried persons.  Doctor allowed to raise rights of unmarried persons **

            3. An organization may sue for its members ( = Association Standing), if: 

               1. members would have standing to sue in their own right,

               2. interests of the members are related to the purpose of the organization, and  

               3. individual member participation is not required  

      3. No Generalized Grievances 

         1. The P must not be suing merely as a citizen or taxpayer interested in having the government follow the law 

            1. Exceptions

               1. Taxpayers have standing to challenge government expenditures as pursuant to federal statutes as violating the Establishment Clause (i.e. this clause prohibits the government from establishing a religion. This will be explained in details later) **

                  1. Thus if the government tries to support a religious school with federal aid, the taxpayers have standing to challenge the federal aid ( = the government expenditures which involves the Spending Power of the Congress (i.e., the Spending Power of the Congress is to tax and spend. This will be explained in details later))

               2. The P has standing to enforce a federal statute if he or she is within the zone of interests Congress meant to protect

   2. Ripeness: A doctrine prohibiting federal courts from exercising jurisdiction over a case until an actual controversy is presented involving a threat of injury that is real and immediate 

   3. Mootness: This arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact. In this case, the court must dismiss the case ** 

      1. Exceptions​

         1. Wrongs Capable of Repetition but Evading Review - The prominent case related to this review was Roe v Wade (1973), which was when the P started the case, she was pregnant, but when Supreme Court decided her case, she was no longer pregnant – while the injury was gone because the P was no longer pregnant, the Court alleged the wrong was capable of repetition as the P could be pregnant again and seek abortion again, thus the case will not be dismissed as moot;

         2. Voluntary Cessation – If the D voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot

            1. Example) Because of an employer who commits racial hiring, the P brings action against the employer, and the case will not be dismissed as moot just because the employer voluntarily halts his or her racial hiring, for the employer could freely resume his racial hiring conduct at any time;

         3. Class Action Suits – The case will not be dismissed as moot until all cases of members will be resolved **

   4. Political Question Doctrine ( = Nonjusticiable Political Question): Generally, a federal court will not take a case if the case shows a political question. That is, if the issue of the case is too political, federal court, as apolitical branch of government, should not take the case

      1. Example) Cases under Republican Form of Government Clause (i.e., the United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence)

      2. Example) Challenges to the President conduct of foreign policy

      3. Example) Challenges to impeachment and removal process

      4. Example) Challenges to partisan gerrymandering (i.e., the practice of drawing electoral district lines to favor one political party, individual, or constituency over another) ** 

   5. Abstention: Federal Courts may not enjoin pending state court proceedings, unless the state court proceeding was conducted in bad faith 

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  2. The Federal Judicial Power   

1. Supreme Court Review: Virtually all cases come to the Supreme Court by writ of certiorari (i.e., a higher court orders a lower court to send all the documents in a case in order for the higher court to review the lower court's decision)

   1. The Supreme Court has exclusive jurisdiction for suits between state governments (e.g., California suing Nevada for water rights dispute can file directly in the Supreme Court) 

   2. The Supreme Court has jurisdiction In all cases affecting ambassadors, other public ministers, and consuls, and in which a state is a party

   3. The Supreme Court has jurisdiction of the final judgment of the cases by the highest state court, of a Untied States Court of Appeals, or a three-judge federal district court **

   4. For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision to the case 

      1. If a state court decision rests on two grounds, one state law and one federal law, the Supreme Court cannot hear the case if federal law claim would not change the outcome because the state law is sufficient for the decision made in the case 

2. Lower Federal Court Review 

   1. Under the 11th Amendment (i.e., Amendment that federal courts and states courts have no power or right to hear cases and make decisions against a state if it is sued by its citizen, the citizen of another state or someone who lives in another country), federal courts and state courts cannot hear suits against state governments  **

      1. Sovereign Immunity: This bars suits against the state government in state courts unless the state government consents 

      2. Congress cannot authorize suits against state governments under other Constitutional provisions

         1. Exceptions: The state governments can be sued under the following circumstances

            1. Federal governments (e.g., U.S. government or other state governments) may sue state governments

            2. Bankruptcy proceedings

            3. Suits against the state government officials are allowed for injunctive relief & personal money damages

               1. However, the state government officials may not be sued if it is the state treasury that will be paying retroactive damages (i.e., damages incurred in the past) **

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  3. Federal Legislative Power

1. Congress Authority to Act 

   1. Congressional Power must be based on an Express or Implied power. That is, there is no general Federal Police Power (i.e., the inherent power of a government to exercise reasonable control over people and property within its jurisdiction in the interest of the general security, health, safety, morals, and welfare except where legally prohibited)

      1. Exceptions: In Military Bases, Indian Reservations, Federal Lands or Territories, District of Columbia; the Congress can exercise the Federal Police Power 

2. Necessary and Proper Clause

   1. Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. That is, Congress can choose any means, that is not prohibited by the Constitution, to carry out its authority

   2. The necessary and proper clause standing alone cannot support federal law. It must work in conjunction with another Federal Legislative Power

      1. Example) To regulate commerce with foreign nations (Necessary and Proper Clause), and among the several states, and with the Indian tribes (Federal Police Power); make rules (Necessary and Proper Clause) concerning Captures on Land and Water (Federal Police Power)

3. Welfare Clause ( = Taxing and Spending Power)

   1. Taxing Power – Congress may tax yet must raise revenue

   2. Spending Power – Congress may spend for any public purpose and for general welfare

      1. Limitation I – Although the taxing and spending powers are broad, they are still limited by all other constitutional provisions

      2. Limitation II - Congress does not have the power to enact any legislation that promotes the general welfare of the nation (Note that the states do have the power to legislate for the general welfare, but only under the state police power, not under this welfare clause) **

4. The Commerce Clause

   1. Congress may regulate;

      1. the channels of interstate commerce (e.g., highways, waterways, internet);

      2. the instrumentalities of interstate commerce; and persons or things in interstate commerce (e.g. instrumentalities are anything that could cross state lines such as trucks, planes, boats, internet, phones; as to persons or things, such as people, cattle, stocks, insurance, radio signals);

      3. economic activities (e.g., transportation, manufacturing, production, banking, farming, cultivation) that have a substantial effect on interstate commerce

         1. Exceptions

            1. Intrastate Activities: However, if Congress attempts to regulate intrastate activities, the court will uphold the regulation of the intrastate activities by Congress yet only if the activities involve economic or commercial activity, and has cumulative effect on interstate commerce (e.g., growing wheat in households that affected wheat prices in various states) 

            2. Non-Economic Activity: Congress cannot regulate non-economic activities (e.g., donating blood, house work, helping the poor) unless Congress can factually show that it has substantial economic effect on interstate commerce

               1. The types of Non-Economic Activity that has substantial effect on interstate commerce are (i) possessing a gun in school zone​ or (ii) gender motivated violence **

5. Congress Authority under the 14th Amendment 

   1. The 14th Amendment was ratified in 1868 in order to protect the civil rights of freed slaves after the Civil War. It has proven to be an important and controversial amendment addressing such issues as the rights of citizens, equal protection under the law, due process, and the requirements of the states

   2. Under the 14th Amendment: 

      1. Congress may not create new rights or expand the scope of rights

      2. Congress may act only to prevent or remedy violations of rights that are recognized by the courts, and such laws must be proportional and congruent to remedy the violations 

6. War and Treaty Powers

   1. Congress has the power to declare war, raise and support armies, and provide for and maintain an army

   2. Example: Economic Regulations during war and in the post war period to remedy the affects of war **

7. Power over Citizenship

   1. Congress may establish uniform rules of naturalization(i.e., The process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA)

   2. This Power over Citizenship gives Congress Plenary Power (i.e., power that has been granted to a body or person in absolute terms, with no review of or limitations upon the exercise of that power) over aliens (i.e., an individual who does not have U.S. citizenship and is not a U.S. national) 

8. The 10th Amendment as a Limit on Congressional Powers 

   1. The 10th Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people. State police power comes from the 10th Amendment

      1. ​States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public

   2. Congress cannot compel/commandeer state regulatory or legislative action 

      1. Congress cannot require states to legislate federal standards, or require them to enforce federal law 

         1. Exception

            1. Congress, however, can spend based on Spending Power in inducing state government action by putting conditions on grants, as long as the conditions are

               1. clearly stated; 

               2. relate to the purpose of the spending program; and

               3. are not unduly coercive **

                  1. ​Example) Congress requiring states to set drinking age at 21, and if the states do not comply with the requirements, the states would lose 4% of highway grants  

            2. Congress may prohibit harmful commercial activity made by state governments

               1. Example) Congress preventing states from releasing or selling private information  

9. Delegation of Powers 

   1. Legislative powers (i.e., power to make new laws or change existing laws which is vested in the Congress) may be delegated (i.e., transfer power or authority from one person to another) as long as intelligible standards (i.e., requiring Congress to clearly articulate a “policy and plan” allowing Congress to grant the executive the authority to execute that plan upon consideration of several factors) are met 

      1. Generally, these days, Congress may delegate any legislative power due to the weakened principle of intelligible standards **

   2. Executive powers (i.e., power that is assigned to the President) may not be delegated to Congress by Congress 

      1. ​Note that in order for the Congress to act, there always must be:

         1. Bicameralism: Passage by both the House and Senate; and

         2. Presentment: Presenting the Bill (i.e., proposal to make a new law or to change an existing law) to the President for his signature or veto in its entirety (i.e., completely)

            1. About the House and Senate: The United States Congress consists of two legislative bodies, the House of Representatives (“House”) and the "Senate". To balance the interests of both the small and large states, the Framers of the Constitution divided the power of Congress between the two houses. The two houses of Congress have equal but unique roles in the federal government. While they share legislative responsibilities, that is, passing legislation requires the agreement of both the House and Senate, each house also has special constitutional duties and powers

               1. The House (i) initiates (i.e., proposes) and amends Bills, (ii) scrutinizes (i.e., examine and inspect thoroughly) the work of the Government, etc.

               2. The Senate (i) considers the Bills approved by the House, (ii) ratifies (i.e., sign or give formal consent to a treaty or an agreement making it officially valid) treaties (i.e., a formal agreement between two or more countries in reference to peace, alliance, commerce, or other international relations), (iii) approves presidential appointments (i.e., A president nominating, and by and with the Advice and Consent of the Senate, appointing Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States), (iv) scrutinizes the work of the Government yet has limited use of its rights, etc.

                  1. ​Note that every state has an equal voice in the Senate, while representation in the House is based on the size of each population of the state

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  4. Federal Executive Power (Power of the President)

1. Foreign Policy

   1. Foreign Relations: President has paramount power to represent the U.S. in day to day foreign relations **

      1. ​Treaties: Agreements between the U.S. and foreign country that are negotiated by the President, and are effective when ratified by the Senate

         1. President has the power to enter into treaties with the consent of two thirds of the Senate

            1. Note that:

               1. Treaty prevail over conflicting state laws

               2. Conflict between treaty and federal law, the last one that is adopted is to prevail

               3. Conflict between treaty and the Constitution, treaty is invalid. That is, Constitution always wins 

      2. Executive Agreements: Agreement between U.S. and foreign country that is effective when signed by both President and the head of foreign country. Here no senate approval is required 

         1. Can be used for any purpose that treaties can be used for

            1. Note that:

               1. the Executive Agreement prevail over conflict between state law 

               2. Never prevail over conflicting federal law or the Constitution 

      3. Commander in Chief: President has broad powers as Commander-in-Chief to use American troops in foreign countries **

2. Domestic Affairs 

   1. ​​​Appointment Power

      1. President appoints Ambassadors, Federal judges, and Official officers of the U.S. along with the Senate Approval 

      2. Congress may vest the appointment of inferior officers (i.e., those who can be fired by an officer of the U.S. such as, U.S. attorney getting fired by the Attorney General) in the President, heads of departments, or in the lower federal courts

      3. Congress must not give itself or its officers the appointment power

   2. Removal Power

      1. Unless limited by statute, the President may remove (i.e., fire) any executive branch officer 

         1. For congress to limit removal power of the President, its office must be where independence from the President is desirable; and 

         2. Congress cannot prohibit removal, but it can limit removal power of the President to where there is good cause (i.e., a legally sufficient reason)

            1. Note that Congress can remove executive officers through impeachment **

   3. Impeachment and Removal 

      1. The president, vice president, federal judges and officers of the U.S. can be impeached from the office for treason (i.e.,intentionally betraying his or her country by levying war against the government or giving aid or comfort to its enemies), bribery, or for high crimes and misdemeanors

      2. Impeachment process does not remove a person from the office because in order for a person to be removed, it must pass the removal process (i.e., explained below)

         1. In order for a person to be impeached, a majority vote of the House is necessary to invoke the charges of impeachment

         2. In order for a person to be removed, 2/3 vote from Senate is necessary to convict and remove the person 

   4. Veto Power

      1. President has the power to veto acts of congress

         1. If the president vetoes (i.e., disapproves) an act of congress, the act may still become law if the veto is overridden by a two-thirds vote of each The House and Senate 

         2. Pocket Veto: Under the Pocket Veto, the President has ten days to exercise the veto power.  If the President fails to act, then the bill becomes law if congress is in session; yet the bill is automatically vetoed if Congress is not in session

         3. Line Item Veto (i.e., A veto power that allows the President to cancel specific parts of a bill) is always unconstitutional because it invalidly gives the President the power to unilaterally amend or repeal parts of statutes that had been duly passed by the U.S. Congress ** 

   5. Executive Privilege

      1. President has executive privilege to keep certain communications secret

         1. Exception: In criminal proceedings, presidential communication will be available to the prosecution

   6. Absolute Immunity

      1. President has Immunity from civil suits for money damages involving actions that occurred while in office

         1. Exception: President has no immunity for actions that occurred prior to taking office 

   7. Power to Pardon

      1. Definition of Pardon: Forgiving a person convicted of a crime, thus removing any remaining penalties or punishments and preventing any new prosecution of the person for the crime

      2. President has the power to pardon those accused or convicted of Federal crimes that are criminal not civil  

         1. Exception: A person cannot be pardoned for the offenses that led to impeachment  **

  5. Federalism 

1. Definition: The distribution of power within the government between the prime authority and the constituent

   1. Preemption 

      1. Definition

         1. The idea that a higher authority of law will displace (i.e., the idea of Preemption is well stated in “The Supremacy Clause of Article VI” which provides that “Constitution, and Laws made pursuant to it, are the Supreme Law of the land”). Thus, between the federal law and state law, the federal law will preempt (i.e., acquire in advance) the state law

      2. Types of Preemption 

         1. Express Preemption 

            1. If federal law expressly states, ‘federal law is exclusive in a field’, or ‘the states may not regulate’, then the state laws are deemed preempted

         2. Implied Preemption 

            1. If federal law & state law are equally exclusive, it is implied that federal law preempts state law 

            2. If federal law & state law are equally not compliable, it is implied that federal law preempts state law

            3. If the federal interest is dominant or federal regulation is pervasive, it is implied that federal law preempts state law

            4. If state law impedes the achievement of the federal objective, it is implied that federal law preempts state law 

      3. Inter-governmental Immunity

         1. According to the intergovernmental immunity doctrine both the federal government and the state government are treated as independent and therefore neither should intrude on the other in certain political areas. It prevents federal government and state governments from intruding on each other

         2. Example) The states may not tax or regulate federal government activity **

   2. ​​Dormant Commerce Clause​​

      1. Definition

         1. Dormant Commerce Clause (“DCC”) refers to a constitutional principle that is inferred from the Commerce Clause. The DCC provides that the exclusive power granted to Congress through commerce clause, implies a negative consequence. The negative consequence is a restriction prohibiting a state from passing legislation that improperly discriminates against interstate commerce. Thus, under the DCC, the state laws and local laws are unconstitutional if they place undue burden on interstate commerce. And because of the negative consequence, the DCC is also called ‘Negative Commerce Clause’  

            1. Note that the difference between the ‘Commerce Clause’ and ‘Dormant Commerce Clause’ is that the former grants broad authority to Congress to regulate commerce among states, while the latter infer state governments do not have power to regulate commerce in other states. For example, the DCC prohibits California and other states from discriminating against interest commerce

      2. Test​

         1. In order to know whether the state law is placing an undue burden on interstate commerce, follow the two steps below:

            1. Talk about Commerce Clause (see above) first, and then explain the next, which explains the Dormant Commerce Clause, which is implicit in the Commerce Clause

            2. If the state law is facially discriminatory (i.e., the law discriminates against interstate commerce to protect its state and local economic interest), the law is invalid unless:

               1. it furthers an important non-economic state interests (i.e., health, safety, welfare),

               2. there is no reasonable non-discriminatory alternative, 

               3. the state or local government is acting as a market participant (i.e., a decision maker as an economic agent), or 

                  1. that is, a state or local government may prefer its citizens when acting as a market participant when buying and selling, giving state subsidies, hiring labor or discounted tuition in state universities

               4. when there is a congress approval as to the alleged state law 

            3. However, if the state law is non-discriminatory, yet it discriminates the purpose in the initiative or the effect in the aftermath, whether the state law is valid or invalid depends on by: 

               1. balancing the state interest against the burden on the interstate commerce, and 

                  1. Note that if the burden on the interstate commerce is bigger than the state interest, the state law is invalid

               2. considering whether other alternatives could be less burdensome

                  1. even if the burden on the interstate commerce is lesser than the state interest, which renders the state law to be valid, if there is other alternatives that could be less burdensome, the state law is invalid **

      3. Examples of DCC 

         1. The state tax laws that discriminate out-of-state business violates the DCC

         2. The states enacting laws requiring local processing(i.e., local inspection) of goods imported into the state violates the DCC

         3. A state prohibiting the importation of goods or other materials from other states violates the DCC

         4. The state laws flagrantly favoring in-state business compared to their out-of-state competitors, that place bigger burden on out-of-state business violates the DCC 

   3. Privileges or Immunities Clause of the 14th Amendment 

      1. Rule: No state may deprive citizens of other states the privileges and immunities it affords to its own citizens

         1. Example) Rights to travel, Right to vote for federal officers

   4. Privileges and Immunities Clause of Article IV

      1. Rule: Prohibits discrimination by a State against non-residents

      2. Test 

         1. In order for the P to allege the law violates Privileges and Immunities Clause of Article IV

            1. First, the law must discriminate out-of-state residents 

               1. Note that only a human being can use this privilege. In the same situation, the corporation and aliens (i.e., a person who does not have a U.S. citizenship and is not a U.S. national) can use Dormant Commerce Clause (see above) or Equal Protection Clause (This will be explained in details later soon) 

            2. Next, Fundamental Rights (i.e., civil liberties or important economic activities) are not protected 

               1. Example) ability to earn a living, access to courts, emergency services, purchase property, or medical care

            3. Lastly, the law still might not violate Privileges and Immunities Clause of Article IV even if it meets the above two tests, if: 

               1. the state has a substantial justification for the discrimination, and

               2. there is no less restrictive means to resolve the problem

   5. Taxation

      1. Federal Taxation on State Governments

         1. The congress may subject states to a regulation or taxation if the law or tax applies to both the public and private sector (i.e., minimum wage laws)

         2. Federal taxes applying only to states must comply with the 10thAmendment as a Limit on Congressional Powers (see above)

      2. State Taxation

         1. The state must not discriminate in-state business from out-of-state business because it will violate the commerce clause(see above)

         2. A non-discriminatory tax will be valid if:

            1. the tax activities have a substantial nexus to the state

            2. the state tax is fairly apportioned 

            3. there is a fair relationship between the tax and the benefit the taxed party receives from the state 

         3. However, the states may not tax or regulate federal government activity

            1. The states cannot tax a government owned store  

            2. The states cannot pay state tax out of federal treasury

               1. Exception: Nondiscriminatory or indirect taxes are permissible (i.e., The states taxing federal employees) **

   6. Full Faith and Credit

      1. Rule

         1. The courts in one state must give full faith and credit to judgments in another state if:

            1. the court that rendered judgment had jurisdictionover the parties and subject matter

            2. the judgment was on the merits (i.e., judgment is rendered after all the evidence in the case and the arguments of the parties have been heard)

            3. the judgment is final

         2. Example) Judgment in California must be enforced in any other states as long as the judgment has jurisdiction, was on the merits and is final **

  6. Protection of Civil Liberties

1. Bill of Rights 

   1. Definition: Ten Amendments to the Constitution. Rights of Americans in relation to their government. It guarantees civil rights & liberties to the individual. Contents are:

      1. The 1st Amendment: Freedom of religion, speech, press, assembly, and petition

      2. The 2nd Amendment: Right to keep and bear arms in order to maintain a well regulated militia

      3. The 3rd Amendment:No quartering of soldiers

      4. The 4th Amendment: Freedom from unreasonable searches and seizures

      5. The 5th Amendment: Right to due process of law, freedom from self-incrimination, double jeopardy

      6. The 6th Amendment: Rights of accused persons, e.g., right to a speedy and public trial

      7. The 7th Amendment: Right of trial by jury in civil cases

      8. The 8th Amendment:Freedom from excessive bail, cruel and unusual punishments

      9. The 9th Amendment: Other rights of the people

      10. The 10th Amendment: Powers reserved to the states

          1. Note that Bill of Rights applies only to federal government. That is, when federal government has invaded the rights of individuals, Bill of Rights will aid the individuals. As to state & local governments, under Incorporation Doctrine, certain rights are incorporated into Due Process Clause of 14th Amendment. That is, when state & local government invade the rights of individuals under the Bill of Rights (except for 2nd, 3rd, 5th& 8thAmendment), the Due Process Clause of the 14th Amendment will aid the individuals

2. State Action

   1. Rule: In order for an individual to be protected under civil liberties (i.e., Due Process (see below) & Equal Protection Clause (see below)), there must have been a government action ( = state action) against the individual

      1. Exceptions 

         1. There are times individual could be protected under civil liberties (i.e., the constitutional norms), when there has been a private (i.e., individual) conduct against the individual;

            1. 13th Amendment can be used to prohibit private race discrimination under slavery 

            2. The Commerce Clause (see above) can be used to apply constitutional norms to private conduct (e.g., Civil Rights Act enacted under the commerce clause)

         2. There are times individual could be protected under civil liberties (i.e., the constitutional norms), when a private entity is performing a task traditionally and exclusively performed by the government (i.e., this is called public function exception);

         3. There are times individual could be protected under civil liberties (i.e., the constitutional norms), when a private entity is performing a task while the government affirmatively authorizes, encourages, or facilitates the unconstitutional activity (i.e., this is called entanglement exception)

      2. Examples)

         1. The examples of state action against an individual

            1. There is a state action when:

               1. courts enforce racially restrictive covenants (i.e., contractual arrangement)

               2. the state administers a private discriminatory trust

               3. the state leases premises to a discriminatory lessee and the state derives a benefit from the discrimination 

               4. the state provides textbooks to a school that racially discriminate, here, the school action is regarded as a state action 

            2. There is no state action when:

               1. the state grants a liquor license to a private club that racially discriminates, and here, the racially discriminatory act of the private club cannot be regarded as a state action, just because the state granted a license

               2. the state grants a monopoly to a utility company, and here, the act of the utility company cannot be regarded as a state action, just because the state granted a monopoly **

3. Due Process

   1. Definition: The legal requirement that requires the government to respect all the legal rights of a person

   2. Types of Due Process

      1. Procedural Due Process

         1. Definition: The principle refers to the procedure (i.e., duty to notify the defendant to appear and to be heard in court) the government must follow if it deprives a person of life, liberty, or property

         2. Rule

            1. First, look into whether there has been a deprivation of life, liberty or property by the government 

               1. Deprivation of Life: A deliberate or foreseeable and preventable life-terminating harm or injury, caused by an act (e.g., murder, rape, kidnapping, abuse) 

               2. Deprivation of Liberty: This occurs if there is a loss of a significant freedom and justice provided by the Constitution or a statute (e.g., a person was deprived of the right to free speech) **

               3. Deprivation of Property: This occurs if there is an entitlement (i.e., reasonable expectation to continue to receive the benefit) of a property and that entitlement is not fulfilled (e.g., entitlement to welfare benefits, government employment, personal belongings, realty)

                  1. Note 1 – Deprivation must be intentional governmental action or reckless action that the government itself created or is under the governmental custody in order for the government to be liable (i.e., governmental negligence is not enough for deprivation of due process) 

                  2. Note 2 –  In an emergency situation, the government is liable under due process if its conduct '"shocks the conscience (i.e., the conduct falls outside the standards of civilized decency)” **

            2. Next, if there actually is a deprivation of life, liberty or property of an individual, look into the Balancing Test 

               1. Balancing Test

                  1. First, see whether the interest of the individual was important

                  2. If it was, see whether additional procedures could increase the accuracy of fact-finding concerning that interest

                  3. Next, look into the interest of the government 

                  4. Lastly, balance the two interests (i.e., the interest of the individual & the interest of the government)

               2. Result

                  1. If the interest of the individual outweighs the interest of the government, the government has the duty to notify the individual to appear and to be heard in court before civil procedure is initiated **

      2. Substantive Due Process

         1. Definition: A principle allowing courts to protect certain “fundamental rights” of an individual from government interference, even if procedural protections are present or the rights are not explicitly mentioned elsewhere in the US Constitution

            1. Note that the difference between the “Procedural Due Process” and the “Substantive Due Process” is former involves an analysis of the procedure required by the Constitution when states seek to deprive people of life, liberty or property; whereas the latter involves the state power to regulate certain activities 

         2. Types of Rights 

            1. Fundamental Rights 

               1. Definition: A group of rights that has been recognized by the Supreme Court as fair and legal requiring a high degree of protection from government encroachment **

                  1. Note that there is a ‘Level of Scrutiny’ where the court determines whether the the law, the government is creating, is violating the constitution & whether the rights are fundamental or non-fundamental 

                     1. Level of Scrutiny 

                        1. Rational Basis Test

                           1. The law will be upheld if the law is (a) rationally related to (b) a legitimate government interest 

                           2. The burden of proof, that the law violates the constitution, is on the P 

                           3. Example) Rational basis test are used in all non-suspect classification such as age, disability, wealth, height, weight, economic regulation

                        2. Intermediate Scrutiny Test

                           1. The law will be upheld if the law is (a) substantially related to (b) an important government interest, and (c) the means are narrowly tailored (i.e., the law narrows the restrictions as much as possible) 

                              1. Note that this test is less demanding than strict scrutiny test​

                           2. The burden of proof, that the law does not violate the constitution, is on the government

                        3. Strict Scrutiny Test

                           1. The law will be upheld if the law is (a) necessary to achieve (b) a compelling government interest, and (c) there is no less restrictive alternative (i.e., the law is the only way to achieve the government interest)

                           2. The burden of proof, that the law does not violate the constitution, is on the government **

               2. Types of Fundamental Rights 

                  1. Privacy (All rights under privacy need to meet strict scrutiny test with one exception)

                     1. Right to refuse medical treatment (i.e., the state may require clear and convincing evidence that a person wanted treatment terminated before it is ended, and the state may prevent family members from terminating treatment for another)

                     2. Right to keep the family together (i.e., here family includes extended family, that is, people need to be actually related)  

                     3. Right to engage in private homosexual activity

                     4. Right to procreate 

                     5. Right to custody of his or her children

                     6. Right to control the upbringing of his or her children 

                     7. Right to purchase and use contraceptives 

                     8. Right to marry

                        1. Right to abortion (i.e., as to right to abortion, instead of the strict scrutiny test, it is subject to ‘undue burden’ test. This will be explained in details next) ** 

                           1. Definition of ‘undue burden’ test

                              1. A test that is under the standard that legislature cannot create a particular law that is too burdensome or restrictive toward the fundamental rights of an individual 

                           2. Definition of 'undue burden' test as to Right to Abortion

                              1. A test to decide whether a provision of law is invalid,​ if its purpose or effect is to place a substantial barrier in the path of a person seeking an abortion **

                                 1. ​Right to abortion prior to viability (i.e., it is not sure whether the fetus could survive outside after birth. The age of viability has been pegged at 24 to 28 weeks)

                                    1. the states ‘cannot prohibit’ abortion prior to viability, yet ‘can regulate’ abortion as long as they do not create an undue burden on the ability to obtain an abortion

                                       1. Exception: The next cases are not considered as undue burden

                                          1. ​24 hour waiting period (i.e., the states may require that at least 24 hours elapse between the counseling whether to have an abortion or not and the actual abortion procedure. That is, the person is effectively required to make two trips to the health care provider  in order to obtain an abortion permission and the actual abortion procedure)

                                          2. The abortion must be performed by licensed physician 

                                          3. Absolute Prohibition of partial birth abortions (i.e., the person performing the abortion deliberately and intentionally delivers a living fetus where any part of the fetal head or half-body is outside for the purpose of performing an act that the person knows will do harm to the partially delivered living fetus)

                                          4. Requirement of parental notice and consent for unmarried adolescent to have abortion (i.e., however, an adolescent can obtain an abortion permission by going before a judge who can approve the abortion by finding it would be in the best interest of the adolescent or that the adolescent is intelligently grown enough to decide the decision for oneself)

                                 2. Right to abortion after viability (i.e., it is sure the fetus could survive outside after birth. The age of viability has been pegged after 28 weeks)

                                    1. the states 'can prohibit' abortion unless it is necessary to protect the life or health of the person who is giving birth

                                       1. Note that the government has no duty to subsidize abortions or provide abortions in public hospitals. Additionally, a law that requires consent of or notice to the other spouse in order to get an abortion is unconstitutional

                  2. 2nd Amendment

                     1. Right for the people to possess arms (i.e., weapons) for their protection and defense is a Fundamental Right (i.e., currently no level of scrutiny is identified)

                  3.  Additional Rights that partially meet strict scrutiny test

                     1. Contracts Clause

                        1. Definition: No state shall pass a law that impairs the obligation of contracts between the parties

                        2. Rule

                           1. ​This clause applies to a state interfering with governmental or private existing contracts, not the federal government interfering with the contracts

                           2. A state interfering with governmental contracts must meet strict scrutiny test (i.e., fundamental right), while a state interfering with private contracts must meet intermediate scrutiny test (i.e., not a fundamental right) **

                     2. Right to Travel

                        1. Definition: No state shall pass a law that prevents people from traveling into another state

                        2. Rule

                           1. A state passing a law that prevents people from traveling into another state (i.e., fundamental right) must meet strict scrutiny test 

                           2. A state passing a law that prevents people from traveling to a foreign country (i.e., not a fundamental right) need to meet rational basis test 

                     3. Right to Vote 

                        1. Definition: No state shall pass a law that prevents the citizens the right to vote 

                        2. Rule

                           1. A state passing a law that prevents the citizens from voting (i.e., fundamental right) must meet strict scrutiny test 

                              1. Note that while the Constitution bans the restriction of voting based on race, gender, etc., unfortunately, it does not explicitly and affirmatively state that all citizens have a right to vote.  And because of this reason, there are a number of people in the U.S. who are permanently barred from voting (e.g., ex-felons, certain Americans living abroad due to trouble registering). In addition, at present, congress can take little or no action to formally help improve voting standards of each state. Thus, the best way to ensure that every vote is counted is to create a constitutionally protected right to vote

            2. Non-Fundamental Rights

               1. Definition: If the fundamental rights generally involves those rights concerning privacy, the non-fundamental rights generally includes economic issues and welfare concerns (e.g., wage, profession, trade)

                  1. Note that, unlike fundamental rights, that is tested under strict scrutiny test, non-fundamental rights are under rational basis test (see above). That is the statute created, relevant to economic issues and welfare concerns, needs to be rationally related to a legitimate government purpose. If it is, the statute will not be struck down on substantive due process grounds

               2. Types of Non-Fundamental Rights

                  1. Takings Clause (i.e., the clause needs to meet the rational basis test)

                     1. Definition of Taking: The government confiscates private property or deprives the right of an individual to the use or enjoyment the private property

                     2. Definition of Takings Clause: The government may take private property for public use (i.e., health, welfare, safety, economic benefit), if it provides just compensation to the possessor of the private property **

                     3. Rule: How to distinguish whether the governmental act constituted a taking

                        1. Possessory Taking

                           1. Definition: The government "confiscates" the property of the possessor, and the possessor no longer has the right to possess that property

                           2. Result: This is a taking, thus, just compensation must be paid to the possessor

                        2.  Regulatory Taking

                           1. Definition: The government “passes a regulation” to deny the possessor of all economic use of his or her private property 

                           2. Result: This is a taking, thus, just compensation must be paid to the possessor

                              1. Note that temporarily denying the possessor of using the property is not a taking as long as the governmental act is reasonable

                              2. Exception

                                 1. However, if the regulation only decreases the value of the property, and the regulation still gives economically viable use of the property to the possessor, it is not a taking. In order to know whether the governmental taking gives economically viable use of the property or not to the possessor, the below factors must be considered:

                                    1. (a) what is the goal of the government regulation,

                                    2. (b) how much has the value of the property diminished (i.e., economically reasonable amount must have been diminished), and 

                                    3. (b) whether the taking interferes with the reasonable expectation of the possessor for the use of the property (i.e., if the purpose of the use of the property is popular and in demand in the community, the reasonable expectation of the possessor is high, thus the taking by the government regulation will be unjust. Thus, (b) though the value of the property diminished was economically reasonable, if the (a) < (c), just compensation must be paid to the possessor)

                        3. Partial Taking

                           1. Definition: The government takes part of the property of the possessor for public use 

                           2. Result: This is a taking, yet instead of a full just compensation paid like the possessory taking and the regulatory taking above, in the case of partial taking, compensation will be paid to the remainder of the property 

                  2. Right to Education (i.e., Right to Education is included in the non-fundamental right thus needs to meet rational basis test)

                     1. Definition: Right to a free public education 

                        1. Note that the right to a free public education is found in the various state constitutions, however, not in the federal constitution ( = Constitution of the United States). That is, every state has a provision in its constitution, commonly called the 'education article,' that guarantees people certain form of free public education until twelfth grade. The federal constitution, however, does not confer a right to education. That is the reason why Right to Education is not a fundamental right under the federal constitution. In addition, the congress does not have the explicit power to legislate the subject of education. Thus, it depends on each state to decide whether to provide an adequate education or not. Nevertheless, once a state decides to provide an adequate education, the provision relevant to education must be consistent with other federally guaranteed constitutional rights, such as the equal protection clause under the 14th Amendment and right to free exercise of religion under the 1st Amendment (this will be explained in details later soon). Therefore, even if the constitution does not directly require that a just education be provided, nevertheless, it has an important effect on education. However, considering there are a large number of children and students who still are not able to get an adequate basic education in every state, it is important for both the state government/court and federal government/court  to implement the Right to Education (i.e., to at least basic education) to be part of the fundamental right **​

4. Equal Protection Clause 

   1. Definition of Equal Protection Clause 

      1. The clause is from the text of the 14th Amendment to the U.S. Constitution. The clause provides "nor shall any state deny to any person within its jurisdiction the equal protection of the laws". The clause implies that individuals should not be treated differently and be treated equally under the laws​

   2. Analysis of Equal Protection Clause 

      1. First, see whether the government had the intent to discriminate people under a law it has created

         1. The government had intent to discriminate if:

            1. the law is discriminatory on its face

            2. there is a discriminatory application on a facially neutral law (e.g., practices in government employment and other areas that adversely affect group of people, even though the law applied by the government is formally neutral)

            3. there is a discriminatory impact and a discriminatory intent behind the law (i.e., if there is no discriminatory impact and no discriminatory intent by the government, however, a discriminatory effect resulted, there is no intent to discriminate by the government) 

               1. Note that the above cases are all tested under strict scrutiny test 

      2. Next, see what classification is the government trying to discriminate people under a law it has created

         1. Classification based on race and national origin

            1. If the government tried to discriminate people based on race and national origin, strict scrutiny test is applied. That is, the law the government created will be approved if the law is (a) necessary to achieve (b) a compelling government interest, and (c) there is no less restrictive alternative (i.e., the law is the only way to achieve the government interest)

            2. The government needs to prove that it had no intent to discriminate (see above) people based on race and national origin under a law it has created 

               1. Exception to Classification based on race and national origin

                  1. Racial discrimination benefiting minority

                     1. Definition: If a racially discriminatory law the government has created benefits minority (i.e., a group of people who differ racially from a larger group of which it is a part), the law will be approved  

                     2. Types of ‘Racial discrimination benefiting minority’

                        1. Past discrimination - A law that states, ‘every time a white person is hired, need to hire a black person’ will be approved because it is regarded as a remedy for clearly proven past discrimination

                        2. Education - A law that states, ‘educational institution may use race as one factor in admitting students to aid minorities’ will be approved as long as the government can prove its compelling government interest is achieving diversity **​ 

         2. Classification based on gender 

            1. Rule

               1. If the government tried to discriminate people based on gender, intermediate scrutiny test is applied. That is, the law the government created will be upheld if the law has an (a) exceedingly persuasive justification that substantially relates to (b) an important government interest, and (c) the means are narrowly tailored (i.e., the law narrows the restrictions as much as possible)

               2. The government needs to prove that:

                  1. classification does not exist on the face of the law, or

                  2. the government did not have the discriminatory impact and discriminatory intent to discriminate based on gender on a facially neutral law

                     1. Example) If a P sues a city statute that states how much height and weight a person needs to be in order to be a police officer, the city statute will be tested under a rational basis test because how much height and weight a person needs to be is not considered as fundamental right (see above). However, if the P can prove the intent of the city statute was sexually discriminatory and the court sides with the claim of the P, the city statute will be tested under intermediate scrutiny test

                        1. Exception to Classification based on gender benefiting one gender (i.e., either men or women) will trigger strict scrutiny test

                           1. Laws that are found to be invalid under this exception (i.e., strict scrutiny test is applied):

                              1. women can be awarded alimony, however, men cannot 

                              2. discriminatory minimum drinking age between men and women

                              3. benefiting women based on stereotypes of women  

                           2. Laws that are found to be valid under this exception (i.e., intermediate scrutiny test is applied)  

                              1. all male draft in certain states 

                              2. different discriminatory rape laws between men and women

                              3. classifications designed to remedy past discrimination against women 

         3. Classification based on alienage

            1. Definition: The government trying to discriminate non-U.S. citizen

            2. Types of Classification based on alienage 

               1. General discrimination based on alienage 

                  1. If the government tried to discriminate people based on alienage (e.g., a court struck down a law that conditioned the payment of welfare benefits to only citizens), strict scrutiny test is applied

               2. Discrimination based on alienage under government function

                  1. If the government tried to discriminate people based on alienage under government function (e.g., a non-U.S. citizen trying to get a career as a police force, public school teacher, federal judge which is under government function), rational basis test is applied **