Juris Doctor (JD) Constitutional Law Syllabus

What is the difference between executive privilege and executive immunity?

Executive privilege protects the confidentiality of presidential communications, but it yields to a demonstrated need in a criminal trial (U.S. v. Nixon). Executive immunity gives the President absolute immunity from civil liability for official acts (Nixon v. Fitzgerald) but no immunity for unofficial conduct (Clinton v. Jones).

What is an unconstitutional legislative veto, and what is the bicameralism and presentment requirement?

INS v. Chadha held that any congressional action altering legal rights/duties outside the legislature must pass both houses (bicameralism) and be presented to the President for signature or veto (presentment). A one-house 'legislative veto' of executive action is unconstitutional.

What is the difference between principal and inferior officers under the Appointments Clause?

Principal officers must be appointed by the President with Senate advice and consent. Inferior officers may be appointed by the President alone, courts of law, or heads of departments if Congress so vests. Inferior officers are supervised/removable by higher executive officers and have limited duties (Morrison v. Olson).

What is the constitutional rule on removal of executive officers?

The President may remove purely executive officers at will. Congress may impose 'for cause' limits on removal of officials who exercise quasi-legislative/quasi-judicial functions (multimember independent agencies), but it cannot give itself removal power except by impeachment. Seila Law: single-director agency heads must be removable at will.

What is the non-delegation doctrine and its standard?

Congress may delegate legislative power to agencies if it provides an 'intelligible principle' to guide the exercise of discretion. The doctrine is rarely used to strike laws, as nearly any standard ('public interest,' 'just and reasonable') has been upheld.

What two questions define a procedural due process claim?

(1) Is there a deprivation of life, liberty, or property by the government? (a legitimate entitlement, not a mere expectation, is required for property; physical/freedom restraints or reputation-plus for liberty). (2) If so, what process is due (notice and an opportunity to be heard)?

What is the Mathews v. Eldridge balancing test for how much process is due?

Courts weigh: (1) the private interest affected; (2) the risk of erroneous deprivation through current procedures and the probable value of additional safeguards; and (3) the government's interest, including fiscal and administrative burdens of added procedures.

What is the difference between a deprivation of property requiring a pre-deprivation hearing (e.g., welfare) and one allowing post-deprivation process?

Welfare benefits (Goldberg v. Kelly), being needed for subsistence, generally require an evidentiary hearing before termination. For interests like disability benefits or public employment, a more limited pre-deprivation notice plus a full post-deprivation hearing may satisfy due process under Mathews.

What level of scrutiny applies to substantive due process claims involving fundamental rights versus non-fundamental rights?

Laws infringing fundamental rights get strict scrutiny (necessary to a compelling interest). Laws affecting non-fundamental rights (economic/social regulation) get rational basis review (rationally related to a legitimate interest).

List the fundamental rights protected under substantive due process.

Privacy-related rights: marriage, procreation, contraception, family relations/living with relatives, childrearing/parental control over education, intimate sexual conduct (Lawrence), and refusal of medical treatment. Also travel and voting (often via equal protection). Note: post-Dobbs, abortion is no longer a fundamental right.

What standard did Planned Parenthood v. Casey apply to abortion, and how did Dobbs v. Jackson change it?

Casey replaced the trimester framework with the 'undue burden' test (no substantial obstacle to abortion before viability). Dobbs v. Jackson (2022) overruled Roe and Casey, holding there is no constitutional right to abortion; abortion regulations are now reviewed under rational basis.

What is the rational basis test and who bears the burden?

A law is upheld if it is rationally related to a legitimate government interest. The challenger bears the burden; the law is presumed valid, and the government need not use the actual purpose—any conceivable legitimate purpose suffices. It applies to non-suspect classifications and non-fundamental rights.

What is the strict scrutiny test and who bears the burden?

A law is upheld only if it is necessary (narrowly tailored, least restrictive means) to achieve a compelling government interest. The government bears the burden. It applies to suspect classifications (race, national origin, alienage) and fundamental rights.

What is intermediate scrutiny, who bears the burden, and when does it apply?

A law is upheld if it is substantially related to an important government interest. The government bears the burden (for gender, an 'exceedingly persuasive justification' is required). It applies to quasi-suspect classifications: gender and non-marital children (illegitimacy).

What are the suspect, quasi-suspect, and non-suspect classifications for equal protection?

Suspect (strict scrutiny): race, national origin, alienage (state laws). Quasi-suspect (intermediate): gender, non-marital children. Non-suspect (rational basis): age, disability, wealth/poverty, sexual orientation (formally), and most other classifications.

When does a facially neutral law trigger heightened equal protection scrutiny?

Only when there is both a discriminatory effect (impact) AND a discriminatory intent/purpose. Disparate impact alone is insufficient; the challenger must show the government acted with a purpose to discriminate (Washington v. Davis).

What is the equal protection standard for affirmative action and racial classifications benefiting minorities?

All racial classifications, even benign ones, get strict scrutiny. Following SFFA v. Harvard (2023), race-based admissions programs are unconstitutional; achieving student-body diversity is not a sufficiently measurable compelling interest, and such programs were not narrowly tailored.

What is the state action doctrine and which amendments require it?

Constitutional rights (under the 14th Amendment and most of the Bill of Rights as incorporated) protect only against government action, not private conduct. A plaintiff must show state action—conduct by a government actor or a private actor treated as the state. (The 13th Amendment is an exception, reaching private conduct.)

What are the two main exceptions that convert private conduct into state action?

(1) Public function—a private entity performing a task traditionally and exclusively reserved to the state (e.g., running elections, a company town). (2) Entanglement/nexus—the government is significantly involved in, encourages, facilitates, or authorizes the private conduct (e.g., judicial enforcement of racially restrictive covenants in Shelley v. Kraemer).

What is the distinction between content-based and content-neutral speech regulations, and their respective tests?

Content-based regulations (targeting subject matter or viewpoint) get strict scrutiny—necessary to a compelling interest. Content-neutral regulations get intermediate scrutiny. Time, place, and manner restrictions in public forums must be content-neutral, narrowly tailored to a significant interest, and leave open ample alternative channels.

What categories of speech are unprotected or less protected by the First Amendment?

Incitement to imminent lawless action, fighting words, true threats, obscenity, defamation, and child pornography are unprotected. Commercial speech and sexually explicit (but non-obscene) speech receive intermediate protection.

What is the Brandenburg test for incitement?

Speech advocating illegal conduct can be punished only if it is (1) directed to inciting or producing imminent lawless action AND (2) likely to incite or produce such action. Mere advocacy of illegality in the abstract is protected.

What is the Miller test for obscenity?

Material is obscene if (1) the average person, applying contemporary community standards, would find that, taken as a whole, it appeals to the prurient interest; (2) it depicts/describes sexual conduct in a patently offensive way as defined by applicable law; and (3) taken as a whole, it lacks serious literary, artistic, political, or scientific value (judged by a national, reasonable-person standard).

What is the test for regulating commercial speech (Central Hudson)?

Commercial speech that is not false/misleading and concerns lawful activity may be regulated if (1) the government interest is substantial, (2) the regulation directly advances that interest, and (3) it is narrowly tailored (a reasonable fit, not necessarily least restrictive).

What are the doctrines of overbreadth and vagueness in free speech?

Overbreadth: a law is facially invalid if it regulates substantially more speech than the Constitution allows, even applied to the litigant's unprotected speech. Vagueness: a law is void if a reasonable person cannot tell what speech is prohibited, risking arbitrary enforcement and chilling protected speech.

What is a prior restraint and what standard applies?

A prior restraint is a government action that stops speech before it occurs (e.g., injunctions, licensing). It bears a heavy presumption against constitutionality; the government must show a special societal harm. Licensing schemes must have narrow, definite standards and procedural safeguards.

What are the three types of forums for government property speech regulation?

(1) Traditional/designated public forums (streets, parks): content-based regulations get strict scrutiny; content-neutral TPM restrictions allowed. (2) Limited/nonpublic forums: regulations need only be viewpoint-neutral and reasonably related to a legitimate purpose.

What is the standard for regulating student speech in public schools?

Schools may regulate speech that materially and substantially disrupts schoolwork or discipline, or invades others' rights (Tinker). Schools may also restrict lewd/vulgar speech (Fraser), school-sponsored speech for legitimate pedagogical reasons (Hazelwood), and speech promoting illegal drug use (Morse).

What First Amendment standard applies to government employee speech?

A public employee's speech is protected only if made as a citizen on a matter of public concern; courts then balance the employee's interest against the government's interest in efficiency (Pickering). Speech made pursuant to official duties (Garcetti) is not protected.

What are the two religion clauses and what is the current test for the Free Exercise Clause?

The Establishment Clause and the Free Exercise Clause. Under Employment Division v. Smith, a neutral law of general applicability that incidentally burdens religion gets only rational basis review. Laws that target religious conduct (not neutral/generally applicable) get strict scrutiny (Lukumi).

How does the Supreme Court currently analyze Establishment Clause claims after Kennedy v. Bremerton (2022)?

Kennedy v. Bremerton abandoned the Lemon test and the endorsement test, holding that Establishment Clause questions must be interpreted by reference to historical practices and understandings (the history-and-tradition test). Government may not coerce religious participation or favor one religion.

What rights are protected by freedom of association, and what may justify infringing them?

The First Amendment protects the freedom to associate for expressive purposes. Laws that prohibit or punish group membership require strict scrutiny and are valid only if the group has illegal aims AND the person actively affiliated, knowing of those aims, with specific intent to further them. Compelled disclosure of membership and compelled inclusion that affects expressive message also get strict scrutiny.