Multistate Essay Examination (MEE) Constitutional Law Syllabus

What is the difference between absolute and qualified presidential/official immunity?

The President has absolute immunity from civil damages for official acts taken while in office (Nixon v. Fitzgerald) and at least presumptive immunity for core constitutional acts. Executive officials performing discretionary functions get qualified immunity unless they violate clearly established statutory or constitutional rights.

What is the legislative veto and why is it unconstitutional?

A legislative veto lets Congress (one house or committee) overturn an executive action without bicameralism and presentment. It is unconstitutional (INS v. Chadha) because any action altering legal rights/duties must pass both houses and be presented to the President.

What is the non-delegation doctrine and the standard for valid delegation?

Congress may delegate rulemaking authority to the executive so long as it provides an 'intelligible principle' to guide the agency. The doctrine is rarely enforced; nearly all delegations are upheld.

What is the State Action Doctrine and why does it matter?

Most constitutional rights (Bill of Rights via 14th Amendment) restrain only governmental, not private, conduct. To assert a constitutional violation against a private actor, the plaintiff must show state action. (Exceptions: 13th Amendment and the Article I prohibition on slavery reach private conduct.)

What are the two main tests for finding state action in private conduct?

(1) Public function exception — a private entity performing a function traditionally and exclusively reserved to the state (e.g., running elections, a company town); and (2) Significant state involvement / entanglement — the state is so entangled with, encourages, or facilitates the private conduct that it becomes state action.

What process is 'due' under Procedural Due Process, and what triggers it?

Triggered by intentional (not negligent) government deprivation of life, liberty, or property. At minimum the person is entitled to notice and an opportunity to be heard before a neutral decisionmaker; the precise procedures depend on the Mathews balancing test.

State the Mathews v. Eldridge balancing test for procedural due process.

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 the fiscal and administrative burden of added procedures.

What constitutes a protected 'property' interest for procedural due process?

More than an abstract need or desire — a legitimate claim of entitlement created by an independent source such as a statute, contract, or rule (e.g., continued welfare benefits, public employment with for-cause tenure, public education). At-will employment is not a property interest.

What rights are protected by Substantive Due Process and what are the two tiers of review?

SDP protects fundamental rights from government infringement regardless of procedure. Infringement of a fundamental right triggers strict scrutiny (necessary to a compelling interest, narrowly tailored); non-fundamental rights get rational basis review (rationally related to a legitimate interest).

Which rights are considered 'fundamental' under Substantive Due Process?

Privacy-related rights: marriage, procreation, contraception, family relations/living with relatives, child rearing/education, and same-sex marriage (Obergefell); plus interstate travel and voting (often analyzed under equal protection). Abortion is no longer a fundamental right after Dobbs.

What standard applies to abortion regulation after Dobbs v. Jackson (2022)?

There is no constitutional right to abortion; it is not a fundamental right. State abortion regulations are reviewed under rational basis — they are valid if rationally related to a legitimate state interest. The Casey 'undue burden' standard is overruled.

What is the difference between facial substantive due process and procedural due process challenges?

SDP asks whether the government has an adequate justification for taking away a life, liberty, or property interest from everyone (the law itself). PDP asks whether fair procedures were used to take it away from a specific individual.

State the three levels of scrutiny in Equal Protection and the classifications that trigger each.

Strict scrutiny (suspect classes: race, national origin, alienage [generally]; and fundamental rights) — necessary to a compelling interest. Intermediate scrutiny (quasi-suspect: gender, legitimacy) — substantially related to an important interest. Rational basis (all else: age, disability, wealth, etc.) — rationally related to a legitimate interest.

Who bears the burden of proof under each level of equal protection scrutiny?

Strict and intermediate scrutiny: the government bears the burden of proving the law survives. Rational basis: the challenger bears the burden, and the law is presumed valid (any conceivable legitimate purpose will sustain it).

What must a plaintiff show to trigger heightened scrutiny for a facially neutral law under Equal Protection?

A facially neutral law triggers heightened scrutiny only if there is both a discriminatory impact AND a discriminatory intent/purpose by the government. Disparate impact alone is insufficient.

What is the standard for gender-based classifications, including the 'exceedingly persuasive justification' rule?

Gender classifications receive intermediate scrutiny: they must be substantially related to an important government interest, and the government must show an 'exceedingly persuasive justification' (VMI). The justification cannot rely on overbroad generalizations about the sexes.

What scrutiny applies to alienage classifications, and the exceptions?

State discrimination against aliens generally gets strict scrutiny. Exceptions: (1) the political-function exception — rational basis for participation in self-government (police, teachers, jurors, voting); and (2) federal alienage classifications get only rational basis due to plenary congressional power over immigration. Undocumented-alien children's education gets intermediate-type review (Plyler).

What scrutiny applies to affirmative action / race-conscious government programs?

All racial classifications, including benign/remedial ones, receive strict scrutiny. After SFFA v. Harvard (2023), race-based affirmative action in university admissions is unconstitutional; remedying general societal discrimination is not a compelling interest, only remedying the government's own past discrimination.

What are the elements of a regulatory (Fifth Amendment) Takings claim, and the two categories of per se takings?

The government may take private property for public use only with just compensation. Per se takings: (1) permanent physical occupation/invasion of property (Loretto), however small; and (2) a regulation that denies the owner all economically viable use of the land (Lucas).

What is the Penn Central test for regulatory takings that are not per se takings?

Courts balance: (1) the economic impact of the regulation on the owner; (2) the extent to which it interferes with reasonable investment-backed expectations; and (3) the character of the government action (a physical invasion weighs toward a taking more than a public-benefit regulatory program).

What is the 'public use' requirement for takings after Kelo v. New London?

Public use is read broadly as 'public purpose.' A taking satisfies public use if it is rationally related to any conceivable public benefit, including transferring property to private developers for economic development (Kelo).

What are the exactions/conditions rules (Nollan and Dolan) for development permits?

When the government conditions a permit on the owner ceding property, the condition must have (1) an essential nexus to the government's legitimate interest (Nollan) and (2) rough proportionality between the condition and the projected impact of the development (Dolan). Otherwise it is an unconstitutional taking.

What is the test for content-based versus content-neutral speech regulation?

Content-based regulations (restricting speech based on subject matter or viewpoint) are presumptively invalid and get strict scrutiny (necessary to a compelling interest, narrowly tailored). Content-neutral regulations get intermediate scrutiny (narrowly tailored to a significant interest, leaving 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 commercial speech that is false/misleading or proposes illegal activity. These may be more freely regulated, though content/viewpoint discrimination within a category is still limited (R.A.V.).

State the Brandenburg test for incitement.

Speech advocating illegal action may 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 abstract advocacy is protected.

State the Miller test for obscenity.

Material is obscene (unprotected) if: (1) the average person, applying contemporary community standards, would find it appeals to the prurient interest; (2) it depicts 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).

State the Central Hudson test for commercial speech.

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

What are the requirements for a valid time, place, and manner regulation in a public forum?

In a traditional or designated public forum, restrictions must be (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels of communication.

Compare public forums, designated/limited public forums, and nonpublic forums for speech.

Traditional public forum (streets, parks) and designated public forum: content-based limits get strict scrutiny; content-neutral get TPM intermediate scrutiny. Nonpublic forum (military bases, government workplaces, jails): government may restrict speech if the regulation is viewpoint-neutral and reasonably related to a legitimate purpose.

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

Schools may regulate student speech that materially and substantially disrupts the educational process (Tinker), is lewd/vulgar (Fraser), is school-sponsored and reasonably related to pedagogical concerns (Hazelwood), or promotes illegal drug use (Morse). Off-campus speech gets greater protection (Mahanoy).

What is the standard for government employee speech under the First Amendment?

A public employee's speech is protected only if (1) the employee spoke as a citizen on a matter of public concern (not pursuant to official duties — Garcetti), and (2) the employee's interest outweighs the government's interest in efficient operation (Pickering balancing).

What is a prior restraint and what is required to justify one?

A prior restraint is a government action stopping speech before it occurs (injunctions, licensing). It bears a heavy presumption against constitutionality; the government must show a special societal harm. Any licensing scheme must have narrow, definite standards and procedural safeguards (no unbridled official discretion).

Explain the overbreadth and vagueness doctrines for speech regulations.

Overbreadth: a law is invalid if it restricts substantially more protected speech than necessary; a litigant may raise the rights of others not before the court. Vagueness: a law is void if a reasonable person cannot tell what speech/conduct is prohibited, violating due process (also risks arbitrary enforcement).

What test currently governs Free Exercise Clause challenges to laws affecting religion?

A neutral law of general applicability that incidentally burdens religion gets only rational basis review (Employment Division v. Smith). But if a law is not neutral or not generally applicable (it targets or singles out religion, or has secular exemptions), it triggers strict scrutiny (Lukumi).

What is the modern standard for Establishment Clause challenges after Kennedy v. Bremerton?

The Lemon test is abandoned. Establishment Clause questions are now analyzed by reference to historical practices and understandings — whether the government practice is consistent with the nation's history and tradition. Coercion of religious participation and direct government religious favoritism remain prohibited.

Compare the Free Exercise Clause and the Establishment Clause.

Free Exercise protects an individual's right to practice religion and is violated when government targets religious conduct (then strict scrutiny). Establishment prohibits government endorsement, sponsorship, or coercion of religion; it is assessed against historical tradition. The two can be in tension, but accommodating religion does not necessarily establish it.