Constitutional Law California Bar Exam Essay Openers, Legal Three, essay constitutional law.3/29/2017 Is there implied preemption? Implied preemption may be based on conflict or field preemption. The Court in U.S. v. Lopez (1995) said that Congress can regulate channels or instrumentalities of interstate commerce, or activities that substantially affect interstate commerce. Employment is not a channel or instrumentality of interstate commerce; thus, if the statute is a valid regulation of interstate commerce, it is because employment substantially affects interstate commerce. It’s possible, though, that the state law would conflict with federal objectives. The ORA seems to reflect a federal policy that some obesity discrimination may be appropriate, if it responds to consumer preferences. Compliance with the Illinois rule would force employers not to discriminate even though federal policy might not only allow, but prefer, such discrimination. For that reason there is a chance a court would find the Illinois rule to be preempted. Assuming that the Illinois rule is not preempted it would be necessary to determine whether it violates the dormant commerce clause. The rule is that if a state statute directly regulates interstate commerce it will almost assuredly be struck down. (New Energy v. Limbaugh (1988). If it discriminates against interstate commerce, the statute will be subjected to strict scrutiny, which will require that be no less commerce-restrictive alternative to achieving the legitimate government interest sought to be furthered (Dean Milk v. Madison (1950). If it regulates interstate and in-state commerce evenhandedly, then it will be subject to a relatively deferential test under which the burdens on interstate commerce will be considered in light of the in-state benefits the statute provides (Minnesota v. Clover Leaf Creamery (1981)). Section: 1: Findings 3. Regulation of a Traditional Government Function: a. Prong 1: One member would almost surely have standing here. Standing requires injury, causation and redressability (Warth v. Seldin (1974)). If the regulation is too lenient then most likely a fired person will be injured; at the very least the person’s job is less secure. The injury would be caused by the lenient regulation and the injury would be redressable by a court. Edwina Everett is a flight attendant for Fair Skies, based in Chicago thesis statement sample paper, which is also the airline’s corporate headquarters. Edwina brings a lawsuit against Fair Skies, claiming a violation of Illinois employment law. Illinois employment law is all common law, and has evolved to the point where, according to one recent court decision, “any unreasonable discrimination which robs the people of the state of the talents of willing workers, is a violation of Illinois law.” Edwina sues Fair Skies in state court on the state law cause of action. What federal constitutional arguments would Fair Skies have in defense? The Congress also finds that obesity is not a legitimate tool for determining the capability of any person to contribute to an efficient workplace. 2. Conclusion: The Confederation would have standing. In U.S. v. Morrison (2000) the Court said that, if the activity being regulated is economic, then the substantial effects inquiry could be done by aggregating individual instances of the activity being regulated, and that Congress would be deferred to in determining whether, in the aggregate, that activity substantially affected interstate commerce. Employment is clearly an economic activity unlike, in Lopez, school violence and, in Morrison, gender-based violence. Aggregating employment relationships it is clear that they have a substantial effect on interstate commerce. Here, the statute clearly is not discriminatory, as it is evenhanded both ostensibly and in application ‘ all employers must comply, and there’s no indication that out-of-state employers are especially burdened. Thus, under the deferential benefit-burden balancing test, the common law rule will probably survive, given the benefits it provides in’state in terms of equality of treatment. Young relief: There is no problem with Adams’s request for an injunction against the head auditor. Such a request is the kind of relief authorized by Ex parte Young (1908), as long as the relief is based on a federal, not a state, law violation, the suit is brought against a state official, not the state, and the injunction would not impair the state’s sovereignty too much (Idaho v. Coeur d’Alene Tribe (1997)). All of these requirements are met here: the underlying law is federal, the request is aimed at the auditor, not the state itself, and an injunction against employment discrimination doesn’t impact the state in the way that the requested relief did in Idaho, where the plaintiff requested an injunction against the state official asserting sovereignty over certain territory claimed by the state. Section: 5 Regulations b. EQUAL PROTECTION – CLASSIFICATIONS If the tax ordinance implicates these same privacy interests, the ordinance will face strict scrutiny review-is the ordinance necessary to serve a compelling government interest-which is strict in name and often fatal in fact. Even if raising funds for education and recreation facilities were a compelling state interest, the ordinance is not necessary to the achievement of that interest. A more narrowly tailored ordinance would tax only those children who attend the public schools (as opposed to private schools) and who use the recreational facilities. Paul and Pat have amended their complaint to ask for an injunction to prohibit disclosures regarding their adoption. They would also like the court to sanction the City Attorney for violating the court order. The only hope for an equal protection success is to invoke fundamental rights theory. Though education is not a fundamental right, the Court has recognized fundamental rights to travel and to vote under the Equal Protection Clause. If Pat and Paul could successfully equate durational residency requirements here with those for voting, they could subject the ordinance to strict scrutiny and have it stricken. Of course, durational residency requirements for voting touch more on the fundamental right to vote than the right to domestic travel, and thus strict scrutiny is unlikely in this non-analogous situation. And even if the ordinance were stricken, the City could simply enact a tax on all families with two or more children and still reach Pat and Paul. f. FIRST AMENDMENT CONCERNS PRIVACY INTEREST/STRICT SCRUTINY If a prior restraint is proper, one may not violate it and then defend against punishment by asserting its unconstitutionality. This is called the Collateral Bar Rule. The City Attorney should have appealed the order instead of violate it. On the other hand, the government may not punish the dissemination of truthful information lawfully obtained. Here, the City Attorney published truthful information regarding Paul and Pat. Where a plaintiff seeks pre-enforcement review of a statute topics for research papers in psychology, the court must consider whether the issue is ripe for review. This requires the court to weigh: (1) the hardship in the absence of pre-enforcement review; and (2) the fitness of the issues and record for review. Because Pat and Paul are already seeking an adoption and the case involves only questions of law for which the record is fit, ripeness will not be a problem. Here, if Paul and Pat can argue that the tax is dissuading them from adopting, then that could be a serious hardship. However paying someone to write a paper, the City will argue that they suffer no hardship yet as their application is still pending. The court will balance these arguments but will likely find they have standing due to the pending adoption, and the case is ripe, as they have enough information to see how the tax would actually work. e. PROCEDURAL DUE PROCESS Here, the tax only affects new residents with two or more kids. The goal is to raise money for schools and recreation areas. While an important interest, it may not be seen as compelling. Certainly school revenue is compelling but recreation areas may not be. Additionally, it is not clear that the city is using the least restrictive means or that this law is necessary. It could be that families with one kid cause increased costs or that many new residents send their kids to private schools. If so, this law does not meet its goal or affect the right people. Here, it can be argued that the court was trying to protect Paul and Pat’s privacy and to prevent anyone from jeopardizing their ability to adopt twins. As adoptions are becoming more difficult, and babies hard to come by (if they were adopting babies), then the order may be seen as serving a compelling interest. Paul and Pat can argue that the tax violates their fundamental right of privacy to have children. This is fundamental per the U.S. Supreme Court, and as such is subject to strict scrutiny. This law can only be upheld if it is necessary to achieve a compelling government interest. In order to pursue a claim, Paul and Pat also need to show that the claim is ripe – that is, a full-fledged controversy is apparent and the record is complete enough for the court to review it. Here, the tax has not been applied to Pat and Paul yet and they are asking for a declaratory judgment. A court will grant a declaratory judgment only if: 1) the record will allow meaningful review, and 2) the hardship without review will be great. MOOTNESS, ABSTENTION AND POLITICAL QUESTION None of these justiciability doctrines will bar suit on the given facts. Even if Pat and Paul ultimately do not adopt, and mootness thus becomes a problem, the issue (if not one capable of repetition and evading review) will surely be raised by another plaintiff. The final issue involves the constitutional validity of the court’s non-disclosure order and of the injunction against further disclosures. At the outset, it is important to note that the press has the same First Amendment rights as ordinary citizens, and that the government has no duty to open itself or its records to the press with the exception of trials, from which the press cannot be excluded. If the injunction applies only to the City attorney, it will likely be valid as a prior restraint on speech if the court finds the order necessary to compelling privacy interests. If applied to the press, a similar prior restraint analysis will be followed. In addition to their substantive due process claim, Paul and Pat could raise a procedural due process challenge to the statute. Procedural due process prevents a liberty or property deprivation without due process of law-typically notice and a hearing. Such a challenge would not succeed in this context, however, where the city is not cutting off an entitlement but is instead imposing a tax. Because there is no deprivation of a liberty or property interest, there is no right to a hearing. City has moved to dismiss the entire complaint on the following grounds: (1) the plaintiffs lack standing to challenge the tax ordinance, and (2) that, in any event, none of the alleged constitutional rights claimed by Paul and Pat were violated by City. If for some reason a court held that the ordinance was in fact content-neutral, then the ordinance would have to be narrowly tailored and allow the speakers an alternative means of making their message heard (Ward v. Rock Against Racism (1989)). The narrow tailoring requirement here is not as strict as that similarly-worded requirement in equal protection (Ward). Even so, it might be asked whether the speakers did in fact have an alternative means of speaking, since the ordinance bans all marches of six or more people for six months, thereby making it impossible for the CBC to perform the ritual as it is required to be performed, i.e. with seven individuals. Moreover, the ban on use of props would also make the ritual harder to perform, and thus burden speech, probably unnecessarily (since any legitimate government interest college book reports for sale, such as a concern for safety or litter, could be taken care of by less speech restrictive means). A total ban on marches for that long a period is a significant burden on speech business letters for job application, which might fail even the lenient time, place or manner test. It is unlikely that the statute could satisfy strict scrutiny. There is no compelling reason for the restriction, except residents’ dislike of the speech or their fear that it will lead to converts, neither of which is a legitimate, let alone a compelling, reason for restricting speech. The question is whether the first ordinance violates the Free Religious Exercise Clause of the First Amendment. Generally speaking, if a statute burdens religious conduct only incidentally, as part of a generally applicable rule of conduct, then the Free Exercise claim fails. (Employment Division v. Smith (1990)). In Smith, for example, a generally applicable rule that firing from a job for drug use disqualifies one for unemployment compensation was held valid, despite the fact that it burdened the religious exercise of the plaintiffs, who smoked a hallucinogenic drug as part of a Native American religious ritual. However, government action aimed at religious exercise in particular will be subject to strict scrutiny and probably struck down (Church of the Babalu Aye v. Hialeah (1993)). Here apa style example essays, there is reason to suspect that the statute, even though facially neutral, was motivated by concerns over the CBC’s rituals. The impetus from the statute arose because of the discovery of the cult’s action, and its exceptions suggest that very little animal cutting will be banned except that done by the CBC. Note also that any legitimate interest the town might have had in protecting animals could have been taken care of by an animal theft and/or an animal cruelty statute that would not have been so closely targeted at the CBC’s actions. Note finally that it doesn’t matter whether the ritual is central or peripheral to the religion’s dogma. The Supreme Court has been unwilling to inquire, in Free Exercise cases, into the centrality of a particular ritual. “No parades of more than five individuals will take place within the next six months, and such parades as are allowed must include only the marchers and no props of any types.” Conclusion: Retirement World is probably a state actor. The Establishment Clause prohibits laws respecting the establishment of religion. If government regulation or activity gives preference to one religious sect over another, it is invalid unless it is narrowly tailored to serve a compelling state interest. Where the law does not affect a suspect class nor implicate a fundamental right, the law need only meet rational basis review. That is the challenger must demonstrate that the law is not rationally related to a legitimate government interest. E.g. Age, disability, wealth and other classifications. Here, the analysis depends on the right being impaired. Where the law limits a fundamental right paper for dissertation, such as the right to vote, travel, privacy or freedom of speech, strict scrutiny applies. In all other cases, the rational basis test applies. Classifications based on gender or illegitimacy must meet intermediate scrutiny – substantially related to an important government purpose. The Privileges and Immunities Clause of the 4 th Amendment prohibit a state from denying non-citizens the privileges and immunities afforded to its own citizens. Thus a state or local law which discriminates against out-of-staters with regards to civil liberties or an individual’s ability to earn a living will be struck down as unconstitutional unless the state demonstrates that the law is necessary to serve an important government purpose. But, the P&I clause does not apply to corporations or aliens. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose. The Free Exercise Clause prohibits the state from imposing restrictions on someone on the basis of the person’s religious beliefs. The state may impose a restriction if it necessary to achieve a compelling state interest. However sample essay for yourself, the Free Exercise Clause cannot be used to challenge a neutral law of general applicability Laws that prohibit or punish group membership must meet strict scrutiny. To punish group membership, the government must prove that the person (1) actively affiliated with the group, (2) knowing of its illegal activities, (3) with the specific intent of furthering those illegal activities. 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. The 14 th Amendment only applies where there is action by the state or local government topics of essays for class 5, or by an individual who is performing a function which is traditionally performed exclusively by the state. The Equal Protection Clause of the 14 th Amendment prohibits state governments from denying any person within its jurisdiction the equal protection of the laws. While the 14 th Amendment applies exclusively to state governments, grossly unreasonably discrimination by the federal government is prohibited by the Due Process Clause of the 5 th Amendment. Under either provision, the analysis is the same. A law which seeks to regulate speech is presumptively unconstitutional. To justify content-based regulation of speech, the government must show that the ordinance is necessary to serve a compelling state interests and it is narrowly drawn to achieve that end. [Discuss whether the regulation is content-based] To be valid, government regulation on speech in public forums must be (1) content neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open alternative channels of communication. If there is a deprivation, the next step is to consider what process is due. Here, the court will balance (1) the importance of the interest to the individual, (2) the ability of additional procedures to increase the accuracy of the fact-finding process, and (3) the government’s interest in fiscal and administrative efficiency. For proper federal jurisdiction as critical thinking flaws, the claim must be ripe for review. A claim is ripe where the plaintiff would suffer harm if review were denied. Where the state regulation is non-discriminatory, the Court will balance the state’s interest in maintaining the regulation against the burden on interstate commerce. The Due Process Clause of the 14 th Amendment requires that a state provide its citizens fair process and procedures before the government may deprive one of life, liberty or property interest. Procedural due-process invokes a two-step inquiry.
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