Bar

Question 1

Standing

Answer 1

Courts will not hear a case unless the party bringing the suit has standing. To have a standing a litigant must have a concrete stake in the outcome in controversy.
A litigant will have a concrete stake if they can show that:
1. it has suffered an injury in fact,
2. that is caused by the conduct complained of and
3. that can be remedied by a decision in the litigant’s favor.

The injury must be specific and more than theoretical, but needs not be economic.
- generally no third party standing (ex: close relationships)
- no generalized grievances (no suing solely as citizen/taxpayer)

Question 2

Ripeness

Answer 2

Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation. When considering ripeness a court considers:
- hardship suffered without pre=enforcement review AND
- fitness of the issues and record for judicial review

Question 3

Mootness

Answer 3

If events after the filing of a lawsuit end P’s injury, the case must be dismissed as moot.
Exceptions:
- wrong capable of repetition but evading review
- voluntary cessation - if free to resume at any time
- class action suits

Question 4

Political Question Doctrine

Answer 4

Refers to constitutional violations that federal courts will not adjudicate
- The “republican form of government clause”
- challenges to the President’s conduct of foreign policy
- challenges to the impeachment and removal process
- challenges to partisan gerrymandering

Question 5

Supreme Court Review

Answer 5

Virtually all cases come the Supreme Court by writ of certiorari.
- All cases from state courts and US court of appeals come by writ of certiorari
- Appeals exist for decisions fo three-judge federal district courts
- SC has original and exclusive jdx for suits between state govs

For SC to review state court decision, there must not be an independent and adequate state law ground of decision.

Question 6

Lower Federal Court Review

Answer 6

Federal courts (and state courts) may not hear suits against state govs.
- 11th Amendment bars suits against states in federal court
- Sovereign Immunitybar suits against states in state courts or federal agencies.

Exception: States may be sued under following circumstances:
- waiver is permitted
- States may be sued pursuant to fed law under 14th Amendment
- Fed gov may sue state govs
- Bankruptcy proceedings and suits pursuant to statutes adopted by Congress under its power to raise an army and navy.
- Suits against state officers are allowed

Abstention: federal courts may not enjoin pending state court proceedings

Question 7

The Federal Legislative Power

Answer 7

The federal gov has limited powers. Every exercise of federal power must be traced to the Constitution.

Question 8

Congress’s Authority to Act

Answer 8

1. There must be express or implied Congressional power
2. the necessary and proper clause
3. the taxing/spending power and the commerce power
4. 10th Amendment is a limit on Congressional powers
5. Congress’ power under Section 5 of 14A. C may not create new rights or expand scope of rights, may only prevent remedy violations of rights (must be proportional and congruent)

Question 9

Federal Police Power

Answer 9

Congress may act only pursuant to an express or implied power in the Constitution. Congress has no general federal police power (no general power to adopt laws for the health, safety, and welfare of citizens.
Exceptions:
- DC
- federal lands/territories
- military bases
- Indian reservations

Question 10

Necessary and Proper Clause

Answer 10

Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal gov.
- Necessary and Proper Clause standing alone can’t support federal law, must work in conjunction with another federal power.

Question 11

Taxing and Spending Power

Answer 11

The Constitution gives Congress the power to tax and spend for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.
- Taxes are generally valid

Question 12

Commerce Power

Answer 12

Congress has the power to regulate all foreign and interstate commerce. A federal law regulating interstate commerce must either:
- Regulate the channels of interstate commerce
- Regulate the instrumentalities of interstate commerce and persons/things in interstate commerce
- Regulate activities that have a substantial effect on interstate commerce (noneconomic activity - substantial effect cannot be based on cumulative impact AND C cannot regulate inactivity.)

Question 13

10th Amendment

Answer 13

10A states that all powers not granted to US, nor prohibited to the states, are reserved to the states or the people. - Congress cannot compel state regulatory or legislative actions (but can induce state action by pulling strings on grants, but can’t be unduly coercive.)
- Congress may prohibit harmful commercial activity by state govs

Question 14

Delegation of Powers

Answer 14

There’s practically no limit on Congress’s ability to delegate legislative power.
- Legislative vetoes and line-item vetos are unconstitutional (President must sign or veto bill in its entirety)
- Congress may not delegate executive power to itself or its officers

Question 15

Treaties

Answer 15

Treaties are agreements between the US and a foreign country that are negotiated by President and effective when ratified by the Senate.
- Treaties prevail over conflicting state laws
- If a treaty conflicts with a federal statute, the one adopted in time controls
- If a treaty conflicts with the US Constitution, it is invalid

Question 16

Executive Agreements

Answer 16

An executive agreement is an agreement between the US and a foreign country that is effective when signed by the President and head of foreign nation.
- Can be used for any purpose
- Prevail over conflicting state laws, but never over conflicting federal law or Constitution

Question 17

Federal Executive Power - Foreign Policy

Answer 17

1. Treaties
2. Executive Agreements
3. Limits on recognition power. Unconstitutional for Congress by statute to designate the capital of a foreign country.
4. Pres has broad discretion in determining whether to admit individuals to the US
5. Pres has broad powers as Commander-in-Chief to use American troops in foreign countries

Question 18

Executive Appointment Power

Answer 18

President appoints ambassadors, federal judges, and officers of the US.
- Congress may vest appointment of inferior officers in the President, heads of departments, or lower federal courts.
- Congress may not give itself or its officers appointment power
- President may not make recess appointments during intrasession recess that are less than 10 days

Question 19

Executive Removal Power

Answer 19

President may fire any executive branch officer
- Congress can limit removal to when there is good cause

Question 20

Impeachment

Answer 20

The President, VP, fed judges and officers of the US can be impeached and removed from officer for treason, bribery, or for high crimes and misdemeanors
- Impeachment does not remove person from office
- Impeachment by House requires majority vote
- Conviction in Senate requires 2/3 vote

Question 21

Preemption

Answer 21

The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
Implied if:
- fed and state law mutually exclusive
- state law impedes fed objective
- Congress evidences clear intent to preempt state law

Question 22

Dormant Commerce Clause

Answer 22

State laws are that discriminate against interstate commerce will usually be held to violate DCC unless the state can prove the laws are necessary to achieve an important state interest.
- Exception: Congressional approval or market participant (gov may prefer own citizens in receiving gov benefits

State laws that do not discriminate against interstate commerce will be upheld unless they unduly burden interstate commerce (burdens exceed benefits).

Question 23

Privileges and Immunities Clause of Article IV

Answer 23

Citizens of each state shall be entitled to the privileges and immunities of citizens in the several states. It has been held to prohibit a state from discriminating against citizens of other states when the discrimination involves commercial activities or civil liberties unless it is necessary to achieve an important government purpose.
- law must discriminate against out-of-staters
- discrimination must be with regard to fundamental rights or important economic activities
- Corps and aliens cannot use clause
- discrimination must be necessary to achieve important gov purpose

Question 24

Privileges or Immunities Clause of the 14th Amendment

Answer 24

Limited to right to travel
- laws that prevent people from moving into state must meet SS
- Duration residency requirements must meet SS
- Restrictions on foreign travel only need RBR

Question 25

State Taxation on Interstate Commerce

Answer 25

States may not use their tax systems to help in-state businesses. May only tax if there is a substantial nexus to the state.
- State taxation of interstate businesses must be fairly apportioned

Question 26

13th Amendment

Answer 26

Discrimination doesn’t violate 13A, only slavery does.
- But 13A authorizes Congress to adopt laws that can prohibit private race discrimination.

Question 27

14th Amendment - Section 5

Answer 27

Cannot be used to regulate private behavior.
Exceptions:
- Public Function
- Entanglement
(these exceptions make all of Constitution apply to private behaviors, not just 14A)

Question 28

Public Function Exception

Answer 28

Constitution applies if private entity is performing a task traditionally exclusively done by the gov.

Question 29

Entanglement Exception

Answer 29

Constitution applies if the gov affirmatively authorizes, encourages, or facilitates unconstitutional activity.
Examples:
- racially restrictive covenants
- gov leases to restaurant that racially discriminate
- state provides books to schools that racially discriminate BUT not private school 99% funded by gov that fires teacher for speech
- no state action when NCAA suspends coach at state university
- state action when private entity regulates interscholastic sports
- no state action when private club with liquor license racially discriminates

Question 30

Bill of Rights

Answer 30

Applies directly only to Fed gov. Applied to states through incorporation into 14A DP clause except:
- 3A
- 5A right to grand jury
- 7A right to jury trial in civil cases

Question 31

Rational Basis Test

Answer 31

Law is rationally related to a legitimate government interest.
- Burden on challenger
- purpose doesn’t have to be actual purpose, just conceivable one

Question 32

Intermediate Scrutiny

Answer 32

Law upheld if substantially related to an important government purpose.
- burden on gov
- need not be least restrictive means, just very good way of achieving objective (not best way)

Question 33

Strict Scrutiny

Answer 33

Law upheld if necessary to achieve a compelling government purpose.
- Burden on gov
- Actual purpose (must be least restrictive means)

Question 34

Procedural Due Process

Answer 34

The 5A, which is applicable to states through the 14A DP clause, prohibits states and their subdivisions from denying a person of life, liberty, or property without due process of law.
- The clause applies when individualized decisions are made.
The process that is due depends on circumstances, but at a minimum, it requires the opportunity to present objections to the proposed gov action to a fair and neutral decisionmaker.

• Whether a life, liberty, or property interest is involved is governed by state law.
• property = entitlement - reasonable expectation to continued receipt of benefit
• gov negligence is insufficient for deprivation of DP (must be intentional)
• gov failure to protect people from privately inflicted harms does not deny DP

What procedures are required? Balance test:
- importance of interest to individual and gov’s interests
- ability of additional procedures to increase accuracy of fact-finding

Question 35

Substantive Due Process

Answer 35

Under the DP Clause, gov action that affects a fundamental right will be upheld only if it can withstand strict scrutiny. If a fundamental right is not involved, the gov action will be upheld unless the challenger can prove RBR.
- Whether gov has adequate reason for taking away person’s life, liberty, or property.

Question 36

Equal Protection Clause

Answer 36

The EPC of the 14A prohibits states from discriminating against people unreasonably. Determining whether discrimination is reasonable depends on the rights involved and the basis of the discrimination.
1. What is the classification?
- Existence of nonfacial race/gender classification proven with discriminatory impact AND discriminatory intent.
2. What level of scrutiny should be applied?
- SS: race, national origin, noncitizens - generally
- IS: Gender, bastards, undocumented immigrant kids
3. Does this law meet the level of scrutiny?

Question 37

Economic Liberties

Answer 37

Only RBR is used. Constitution provides only minimal protection for economic liberties.
Examples:
- employment regulations
- trade/profession regulations
- consumer protection laws

Question 38

Takings Clause

Answer 38

Gov may take private property for public use if it provides just compensation.
1. Is there a taking?
- Possessory Taking: confiscation or physical occupation
- Regulatory Taking: leaves no reasonable economically viable use (conditions on development must be justified by benefit that is roughly proportionate to burden, else its a taking)
2. Is it for public use? Does gov act out of reasonable belief that action will benefit the public? (broadly defined)
3. Is just compensation paid? (reasonable market value)

Question 39

Contracts Clause

Answer 39

No state (fed = RBR) shall impair the obligations of existing (not future) K’s. State interference must meet IS (nontraditional).
- Does the legislation substantially impair party’s rights under existing K?
- If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

State interference with gov K’s must meet SS.

Question 40

Privacy Rights

Answer 40

Fundamental Right under SDP (strict scrutiny).
- Right to marry (laws prohibiting same-sex marriage violate right to marry)
- Right to procreate
- Right to custody of one’s children (state can create rebuttable presumption that husband is father)
- Right to keep family together (need to be related)
- Right to control upbringing
- Right to purchase and use contraceptives (not abortion)
- Right to engage in private consensual homosexual activity
- Right to refuse medical treatment

Question 41

Second Amendment

Answer 41

1. Protects right to have handguns in home for security
2. State laws that condition having a concealed weapon in public with permit are unconstitutional
3. State laws regulating guns are allowed only if they were a type that historically existed (historical test)

Question 42

First Amendment - Speech

Answer 42

1A guarantees freedom of speech. However, it does not provide the freedom to say whatever one wants whenever and wherever one wants. In most cases, the gov may regulate the content of speech if the regulation is necessary to achieve a compelling state interest. However, the gov is a little freer to regulate the conduct of speech - the TPM in which speech may take place. The standard used to test the reasonableness of TPM restrictions depends on the type of forum involved.

Question 43

Public Forms and Designated Public Forums

Answer 43

Public Forums are gov properties historically open for speech activities, including sidewalks and public parks.
Designated PFs are gov properties not historically open for speech activities but which have been thrown open by the gov for such activities.
TPM regulations for these must:
1. be content neutral
2. be narrowly tailored to achieve important gov interest, and
3. leave open alternative channels of communication

Question 44

Limited Public Forums and Nonpublic Forums

Answer 44

Limited PFs are gov properties not historically open for speech activities but which the gov has opened for a particular purpose.
NPFs are gov properties not historically open for speech activities and non held open for speech activities in any way.
TPM regulations in these forums must be viewpoint neutral and reasonably related to a legitimate gov purpose.

Question 45

First Amendment - Content Based vs Content Neutral

Answer 45

A regulation is content neutral if it is subject matter neutral (not based on topic) and viewpoint neutral (not based on ideology).

Question 46

First Amendment - Narrowly Tailored

Answer 46

A regulation will be considered narrowly tailored if it does not burden substantially more speech than is necessary to achieve an important gov interest. However, the regulation need not be the least restrictive means for achieving the gov’s goal.

Question 47

First Amendment - Alternative Channels of Communication

Answer 47

A regulation will be deemed to leave open alternative channels of communication if other reasonable means for communicating the idea are available.

Question 48

First Amendment - Prior Restraints

Answer 48

Judicial order or Administrative system stopping speech before it occurs.
- must meet SS
- must be complied with and then later challenged

Question 49

First Amendment - Vagueness and Overbreadth

Answer 49

DP Clause requires laws give people reasonable notice of what is prohibited. This principle is applied somewhat strictly when 1A activity is involved in order to prevent chilling 1A rights.
Vague: if reasonable person cannot tell what speech is prohibited and what is allowed.
Overbreadth: overbroad if it regulates substantially more speech than the Constitution allows to be regulated.
- Fight words laws are unconstitutional vague and overbroad

Question 50

First Amendment - Symbolic Speech

Answer 50

Gov 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 gov’s purpose.

Question 51

First Amendment - Commercial Speech

Answer 51

Commercial speech is subject to a different standard than TPM. The validity of a regulation of commercial speech is tested under a 2 step approach.
1. determine whether speech concerns a lawful activity and is not misleading or fraudulent.
2. If speech clears first hurdle, it may be limited by a regulation that (IS):
- serves a substantial gov interest
- directly advances that interest, and
- is narrowly tailored to achieve that interest (need not be least restrictive)

Question 52

First Amendment - Freedom of Association

Answer 52

While there is no explicit mention of associational rights in the Constitution, the SC has held 1A guarantees the right to associate with persons of one’s choosing.
- laws that prohibit group membership where such disclosure chills association must meet SS

To punish membership it must be proven:
- actively affiliated with group
- knowing of its illegal activities, and
- with the specific intent of furthering those illegal activities.

Laws that prohibit group from discriminating are constitutional unless they interfere with intimate association or expressive activity

Question 53

First Amendment - Religion (Free Exercise Clause)

Answer 53

The Free Exercise Clause provides that gov shall not interfere with the free exercise of religion. A number of issues can arise under a free exercise claim:
- whether a religious belief is involved (if it occupies place in believer’s life parallel to orthodox religious beliefs)
- whether that belief is sincerely held, and
- whether the gov is interfering with the religious belief

Question 54

Standing - Organization

Answer 54

An organization will have standing to challenge government action that injures the organization itself. An organization will also have standing to challenge government action that causes injury to its members if the organization can show:
1. an injury to individual members that would give them a right to sue on their own behalf
2. the injury is related to the organization’s purpose, and
3. neither the nature of the claim more the relief requested requires participation of the individual members in the lawsuit