Brett Mulligan

Question 1

“11th amendment immunity”

Answer 1

Protects state from suit “commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
States retain a constitutional immunity from suit in their own courts, and, States retain immunity from private suits prosecuted in their own courts.
Federal question jurisdiction gives citizens a right to sue his own state in federal court on federal question jurisdiction.
Work around 11th amendment (ex parte young): exception for injunctive relief; just don’t name state and instead name state official

Question 2

3 factors to Standing

Answer 2

3 factors: Injury, causation, repressibility

1) Personal, actual, or imminent injury in fact. The plaintiff must have suffered an “injury in fact” - an invasion of a legally-protected interest which is (a) concrete and particularized, (b) actual or imminent not conjectural or hypothetical. Most injuries are economic or tangible; but aesthetic, emotional, and environmental injuries are sufficient to confer standing if the remaining elements of standing are present.
2) Caused by or fairly traceable to the defendant’s action complained of. There must be a causal connection between the injury and the conduct complained of- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court
3) Redressable by the courts. It must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision.

Question 3

For third-party standing to be present there must be…

Answer 3

(1) a substantial or special relationship between the claimant and the third party,
(2) proof of the impossibility or impracticability of the third party asserting his or her own interests; and
(3) a risk that the rights of the third party will be diluted or lost unless the claimant is allowed to assert the third party’s claim.

Question 4

Ordinary standings rules apply to organizations asserting their own rights, but when an organization asserts the interest of people who they claim to represent, it must be established that…

Answer 4

(1) the members would have standing to sue independently;
(2) the interests asserted are germane to the association’s purpose; and
(3) neither the claim asserted nor the relief requested requires the members’ participation in the suit

Question 5

Ripeness: controversy/injury/wrong has occurred or manifested. What are the 3 requirements?

Answer 5

To be ripe for decision, a plaintiff must

(1) have already suffered harm;
(2) be faced with a specific present objective harm; and (3) be under a threat of specific future harm.

Question 6

Mootness

Answer 6

A moot case need not be decided. A case rendered moot if events occur after the case has begun that eliminate the plaintiffs stake in the controversy.
The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence.

Question 7

Political question: Separation of powers issues/ courts right to punt issue to legislature or executive. “Prominent on the surface of any case held to involve a political question is found”…

Answer 7

(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department;
(2) or a lack of judicially discoverable and manageable standards for resolving it;
(3) or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion;
(4) or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
(5) or an unusual need for unquestioning adherence to a political decision already made;
(6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Question 8

10th amendment

Answer 8

Powers not enumerated in constitution are left to states and citizens.

Question 9

The ‘Necessary and Proper Clause’ grants Congress…

Answer 9

The legislative authority to enact a particular federal statute if the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. The relevant inquiry is simply “whether the means chosen are “reasonably adapted” the attainment of the legitimate end.”

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Question 10

Aggregate principal…

Answer 10

Congress may use its commerce power to regulate a class of activities without proof that the particular intrastate activity has an effect on interstate commerce. So long as the regulated activities (considered as a class and taken as a whole) has a substantial effect on interstate commerce, and the affected person is “a member of the class” that is regulated, the regulation is a valid use of the intrastate commerce power.

Question 11

Test of substantive immunity

Answer 11

(1) there must be a showing that the challenged statute regulates the “States as States” (2) the federal regulation must address matters that are indisputably “attributes of state sovereignty” (3) it must be apparent that the States’ compliance with the federal law would directly impair their ability “to structure integral operations in areas of traditional government functions.” (4) apparently successful challenges fail if “the federal interest advanced (by the challenged law) justifies state submission.”

Question 12

Procedural Immunity…

Answer 12

The state autonomy limit upon the commerce power is “one of process rather than one of result. Any substantive restraint on the [commerce power] must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process/ The court might intervene to correct “possible failings in the national political process.”

Procedural immunity is that Congress can use the commerce power to regulate the states in whatever manner it pleases, so long as the regulation is

(1) A clear and unequivocal statement of congressional intent to regulate a state’s sovereign functions, and
(2) Not the product of a political process.

Question 13

2 ways Congress can encourage a State to regulate in a particular way

Answer 13

(1) Under Congress’s spending power “Congress may attach conditions on the receipt of federal funds.” Such conditions must (among other requirements) bear some relationship to the purpose of the federal spending; otherwise, of course, the spending power could render academic the Constitution’s other grants and limits of federal authority. Where the recipient of federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State’s legislative choices.
(2) Where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress’s power to offer States the choice of regulating that activity according to federal standards or having state law preempted by federal regulation. By either of these two methods, the residents of the State retain the ultimate decision as to whether or not the State will comply.

Question 14

Congress may attach conditions on the receipt of federal funds… what are the 3 elements for a spending condition?

Answer 14

(1) The exercise of the spending power must be in pursuit of “the general welfare.” In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgement of Congress
(2) If Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously, [enabling] the States to exercise their choice knowingly, cognizant of the consequences of their participation.”
(3) Our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs.

Question 15

Dormant commerce clause or the negative commerce clause

Answer 15

Modern dormant clause doctrine proceeds along two tracks. If a state regulation openly discriminates against interstate commerce, the regulation is presumed to be invalid. The regulation is valid only if the state can prove that it furthers a legitimate state interest that cannot be accomplished by any less discriminatory means. But if a state regulation is nondiscriminatory and has only incidental effects on interstate commerce, it is presumed valid. The regulation is void only if the challenger can prove that the burden imposed on interstate commerce is clearly excessive in relation to the punitive local benefits of the regulation.

Balancing test: “Does this state regulation so interfere with the national interest in maintaining a free flow of interstate commerce that the local benefits of the regulation are comparatively slight?”

Question 16

Pike balancing test

Answer 16

“Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” The crucial inquiry, therefore, must be directed to determining whether the law is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.

Question 17

SC has identified three elements that a state must prove to establish that a facially discriminatory tax is a valid compensatory tax

Answer 17

(1) The state must identify the specific intrastate tax burden for which the discriminatory tax compensates, and show that the intrastate tax serves a purpose for which the state may legitimately burden interstate commerce
(2) The discriminatory tax must approximate but not exceed the tax imposed on intrastate commerce
(3) The discriminatory tax and the intrastate tax must fall on substantially equivalent events.

Question 18

3 principles of Commerce Clause Challenges to state regulations

Answer 18

(1) The courts are not empowered to second-guess the empirical judgements of lawmakers concerning the utility of legislation
(2) The burdens imposed on commerce must be balanced against the local benefits actually sought to be achieved by the State’s lawmakers, and not against those suggested after the fact by counsel
(3) Protectionist legislation is unconstitutional under the Commerce Clause, even if the burdens and benefits are related to safety rather than economics

Question 19

“Market Participant” Doctrine

Answer 19

When a state acts like an ordinary businessperson (as a participant in a market, rather than as a regulator of market activity) it is exempt from scrutiny under the dormant commerce clause

Question 20

5 major differences between Privileges and Immunities Clause and dormant commerce clause doctrine

Answer 20

(1) Corporations may bring commerce clause challenges but are not “citizens: for purposes of the privileges and immunities clause and thus are not protected by it
(2) The privileges and immunities clause protects only certain rights that are “fundamental to the promotion of interstate harmony.” By contract, the dormant commerce clause applies to all interstate commercial activity
(3) There is no market participant exception to Article IV privileges and immunities clause
(4) Congress cannot consent to state acts that violate the privileges and immunities clause, but it can consent to state regulation of interstate commerce that would otherwise violate the dormant commerce clause. Congress can no more waive the privileges and immunities clause than it can waive a state’s violation of free speech or equal protection. However, because Congress has plenary power to regulate interstate commerce, it can permit states to regulate interstate commerce in way they could not in the absence of congressional exercise of its commerce power.
(5) The standard of review used in privileges and immunities cases is “intermediate”- more exacting than Pike balancing but not as stern as strict scrutiny.

Question 21

The fundamental rights protected as privileges and immunities by Article 4, section 2, consist of interest that are fundamental to the promotion of interstate harmony or to the maintenance and well being of the nation

Answer 21

In practice, this boils down to the right to prevent a state from imposing unreasonable burdens on citizens of other states in (1) seeking a job, or, all the privileges of trade and commerce, (2) the ownership and disposition of privately held property within the states, and (3) access to a state’s courts

Standard of review: States may discriminate against outsiders if they can prove that there is a “substantial reason” for differential treatment. To do so, a state must prove (1) a substantial relationship between the discriminatory practice and the problem the law addresses, and (2) a lack of workable less discriminatory alternatives to achieve the state’s goal. The court has described the first element as a requirement that non-residents must be shown to “constitute a peculiar source of the evil at which the statute is aimed.”

Question 22

Field preemption…

Answer 22

Occurs when federal law leaves no doubt that Congress has intended by its legislation to occupy an entire field, such that even without a federal rule on some particular activity within the field, state regulation of that activity is preempted, leaving the activity unregulated by either state or federal law. This implied intent of Congress can be detected in several ways: (1) when federal regulation of a field is so pervasive as to make reasonable the inference that Congress intended to displace state regulatory authority; (2) when the federal law touches a field in which the federal interest is so dominant that the federal system is assumed to preclude enforcement of state laws on the same subject (e.g. immigration and nationality; or (3) when the object sought to be obtained by the federal law and the character of obligations imposed by it reveal a congressional intent fully to occupy the field. Courts are apt to construe the field that is occupied fairly narrowly to avoid the possibility of a regulatory vacuum: preclusion of state regulation but the absence of federal regulation

Question 23

Conflict preemption…

Answer 23

Occurs in one of two ways. (1) when compliance with both state and federal law is literally impossible. (2) when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objections of Congress.”

Question 24

“obstacle” conflict…

Answer 24

State law discourages behavior that federal law specifically encourages

But “obstacle” conflict preemption will not be found simply because state law is in “general tension with broad or abstract goals that may be attributed to various federal laws or programs.”

Question 25

4 factors when a state tax violates the dormant commerce clause…

Answer 25

(1) “Substantial Nexus” Only those activities that have a substantial connection to the taxing state may be taxed
(2) “Not fairly Apportioned” A state may tax only its fair share of an interstate business’s activities. If the same activity (e.g., net income) can be taxed by more than one state, the taxing state must fairly apportion the taxed activity so that the tax minimizes the possibility of multiple taxation on the same event
(3) “Discriminates against interstate commerce” A tax that is openly discriminatory toward interstate commerce is void unless the taxing state can prove that there is a legitimate reason for the discrimination and these is no less discriminatory way to achieve that legitimate objective
(4) “Not fairly related” The tax must be measured in such a way that it is “reasonably related to the extent of the activities or presence of the taxpayer in the state.”

Question 26

States may tax income derived from foreign trade and may also tax the property or services used in connection with foreign commerce, but there are 2 limitations

Answer 26

(1) Property or services tax: First, the tax is void if there is any risk of multiple taxation of the same event. Second, if a state tax impairs federal policy toward foreign trade, it is void even though otherwise valid
(2) Income: An income tax that taxes income from foreign commerce is generally valid, unless the tax is certain to produce multiple taxation of the same event and the state has a reasonable and less burdensome alternative will the tax be voided.

Question 27

Article II, section 2 (appointment clause) gives the President…

Answer 27

sole power of appointment of principal officers, subject to Senate confirmation, but Congress may vest the appointment power of inferior officers in either the President, the courts, or the heads of the executive departments. An “officer of the United States” is any appointee exercising significant authority pursuant to the law of the United States,” but the Court has never precisely distinguished between principal and inferior officers.

Question 28

4 factors lead to conclusion of when an officer is “inferior”

Answer 28

(1) Officer is subject to removal by a higher Executive official
(2) Only certain, limited duties
(3) Limited in jurisdiction
(4) Office is limited in tenure

Question 29

Nondelegation doctrine

Answer 29

Congress may not delegate its legislative powers, or legislate without conforming to the constitutional procedures of bicameral action and presentment to the President, or entrust the execution of law to officials accountable only to Congress. But even if these specific doctrines are satisfied, the Court will void congressional action if it poses a danger of aggrandizement or encroachment. “Aggrandizement: occurs when Congress unreasonably enlarges a single branch’s power at the expense of the other two branches. “Encroachment” occurs when Congress enacts law that “undermines the authority and independence of any branch of the federal government.

Question 30

In separation cases specifically involving the Judicial branch, the court has express vigilance against two dangers:

Answer 30

(1) that the Judicial Branch neither be assigned nor allowed “tasks that are more properly accomplished by other branches”, and
(2) that no provision of law impermissibly threatens the institutional integrity of the Judicial Branch

Question 31

Intelligible principle

Answer 31

“Only if there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose. The outer limit of the generality with which Congress may legislate is that Congress must declare a policy and define “the circumstances in which its command is to be effective.” Legislation must at least set forth “an intelligible principle to which the person or body authorized to take action is directed to conform

Question 32

Article 1, section 1 and 7 (Presentment Clause)

Answer 32

Requires that all legislation be bicameral- identical bills must pass both houses of Congress- and must be presented to the President for signature or veto

Question 33

four provision in the Constitution, explicit and unambiguous, by which one house may act alone with the unreviewable force of law, or subject to the President’s veto

Answer 33

(1) Impeachment by the House
(2) Impeachment trials by the Senate
(3) The Senate’s power to deny or confirm presidential appointments, and
(4) The Senate’s power to ratify treaties.

Question 34

Legislative immunity…

Answer 34

The “speech and debate” clause provides that members of Congress “shall not be questioned in any other Place for any Speech or Debate in either house.” The purpose of such immunity is to foster uninhibited legislative debate.

The “privilege from arrest” clause provides that except for cases of Treason, Felony, and Breach of Peace, members of congress are privileged from arrest while in congress or traveling to congress. The clause does not shield members of Congress from service of process, nor does it immunize members from arrest in a criminal manner

Question 35

Executive Immunity

Answer 35

The president is immune absolutely from civil liability for his official actions. (May sue for individual liability, not for official act)

Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the SC finds it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for camera inspection with all the protection that a district court will be obliged to provide

When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice

Balancing test: upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was essential to the justice of the pending criminal case.

Question 36

Substantive due process identifies…

Answer 36

Certain liberties or rights that are not specifically mentioned in the Constitution and to raise a presumption that government interference with those rights is void

The concept is simple: Some liberties not mentioned in the Constitution but identified by the Court are considered so fundamental to the idea of liberty that their invasion by government is presumed to be void and can be sustained only if the government justifies the invasion. Substantive due process, then, is simply the major doctrinal part of a larger constitutional enterprise of judicial protection of fundamental but unwritten rights

Perhaps the most enduring monument of substantive due process is the incorporation doctrine, by which most of the substantive guarantees of the Bill of Rights have been “incorporated” into the Fourteenth Amendment’s due process claim and thus made applicable to the states

Question 37

The Fourteenth Amendment added three major limits on state power:

Answer 37

(1) No state may “abridge the privileges or immunities of citizens of the United States,” nor
(2) Deprive any person of life, liberty, or property without due process of law, nor
(3) Deny to any person within its jurisdiction the equal protection of the laws

Question 38

Three principal avenues by which the actions of a private individual may be attributed to the state

Answer 38

(1) The Public Function Doctrine: The government may delegate its power to perform a public function to a private person
(2) Inextricable Entanglement: The government may become so inextricably entangled with the private person that their separate identities are lost
(3) Coercion and Encouragement: The state may so coerce or extraordinarily encourage the private action that the private actor is seen to have lost its presumptive power of voluntary choice, its act is directed by the state

Question 39

The Fifth amendment’s takings clause provides that “private property shall not be taken for public use without just compensation.” The takings clause applies to the states as well as the federal government, via incorporation into the Fourteenth Amendment’s due process clause. Has 2 requirements:

Answer 39

(1) The “just compensation” requirement of the takings clause prevents forced redistribution of private property by ensuring that when government power is used to take private property the public pays for it
(2) The “public use” requirement prevents even fully compensated takings if the purpose is to force a person to transfer his property to another entirely from the latter’s private benefit. The public use requirement thus ensures that government compulsion is used only to secure public benefits

Question 40

3 categorical rules to takings

Answer 40

(1) There is no taking, no matter what the economic impact of the regulation, if government regulation of property merely abates a common law nuisance. Regulations that do no more than abate common law nuisances are valid per se, no matter how economically destructive they may be. But regulations that aim to preclude property uses that are “noxious” but not actionable nuisances are not within this categorical rule of per se validity.
(2) A taking has occurred when government regulations produce a permanent physical occupation of private property, no matter how slight. Where “permanent physical occupation” of land is concerned, the SC has refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted “public interests” involved- though we assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the landowner’s title. Where a taking is alleged from regulations which deprive the property of all value, the test must be whether the deprivation is contrary to reasonable, investment-backed expectations. When a government causes a permanent physical occupation of all or a part of private property, whether by the government or by a third party authorized by the government, the government has taken that property.
(3) A taking has occurred when government regulations (other than nuisance abatement) leave the owner with no economically viable use of his or her property. Denies an owner economically viable use of his land. Regulations that destroy all economically viable use of private property and that are not abatements of public or private nuisances are takings per se.

Question 41

Two specific balancing tests are used when governments attach conditions to the issuance of building or land use permits that would be takings if impose only: (Nolan/Dolan)

Answer 41

(1) The condition is substantially related to the state’s otherwise valid reason for restricting land use at all, and
(2) The nature and scope of the condition are roughly proportional to the public impact of the proposed land use

Question 42

Conditional regulatory takings, the general standard consists of two components

Answer 42

(1) An essential nexus between the state’s underlying legitimate regulatory interest and the condition imposed so that the condition advances the state’s legitimate reason for regulating in the first place
(2) Rough proportionality between the condition imposed and the impact of the owner’s proposed action upon the state’s legitimate regulatory interest. The government has the burden of proving these elements

Question 43

Contracts Clause

Answer 43

Specifically, the clause was intended to prevent states from enacting laws relieving debtors of their contractual obligations and thereby depriving creditors of their contractual rights, as several states had done in the decade prior to adoption of the Constitution.

Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct, provided no substantial right secured by the contract is thereby impaired. Every case must be determined upon its own circumstances. The question is “one of reasonableness, and of that the legislature is primarily the judge.”

If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, such as remedying of a broad and general social or economic problem…. One legitimate state interest is the elimination of unforeseen windfall profits. The requirement of a legitimate public purpose guarantees that the state is exercising its police power, rather than providing a benefit to special interests

Question 44

Substantial impairments (Contracts clause)

Answer 44

Substantial impairments (those reasonably foreseeable and not financially overwhelming) are valid if the state has a legitimate and significant public purpose for the impairment, the impairment is reasonable, and it is of a character appropriate to the public purpose. In applying this test, courts “defer to the legislative judgement as to the necessity and reasonableness of a particular measure.”

Question 45

Severe impairments (Contracts clause)

Answer 45

severe impairments (those unforeseeable and financially overwhelming) are valid only if (1) the state can prove that the impairment is temporary, (2) reasonable in scope, and (3) directed related to a compelling or emergency objective.

Question 46

The substantive “liberty” protected by due process includes the right

Answer 46

“to acquire useful knowledge, to marry, establish a home and bring up children, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

If liberty is deemed fundamental=strict scrutiny (law presumed invalid)
If liberty is not fundamental=minimal scrutiny (law presumed valid)

Question 47

Roe’s essential holding has 3 parts

Answer 47

(1) a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.
(2) a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exception for pregnancies which endanger a woman’s life or health.
(3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child

Question 48

Marriage is fundamental under the Constitution apply with equal force to same sex couples, what are the 4 reasons why the court found this?

Answer 48

(1) The right to personal choice regarding marriage is inherent in the concept of individual autonomy
(2) Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals
(3) Protecting the right to marry is that is safeguards children and families and thus draws meaning from related rights of child rearing procreation and education
(4) This court’s case and the Nation’s traditions make clear that marriage is a keystone of our social order.

Question 49

Penn Central test for regulatory taking

Answer 49

1. ) economic impact on property
2. ) interference with investment-backed expectations
3. ) character of government action