Con

Question 1

ex post facto clauses

Answer 1

prohibit enactment of retroactive criminal laws that

criminalize previously legal conduct,

impose a greater punishment than previously prescribed,

eliminate previously available defenses,

decrease gov’s previous burden of proof

Question 2

bill of attainder clauses

Answer 2

prohibit legisilation acts that inflict civil or criminal punishment against indentifiable persons (or groups of ppl) without a trial

Question 3

to determine if congress can regulate an activity, courts consider whether

Answer 3

1) the activities are economic in nature (if so, a substantial effect is presumed),

2) the reg has a jurisidictional elements that limits its reach to activities w/ a direct connection to or effect on interstate commerce

3) there are express congressional findings concerning the activities’ effect on interestate commerce, and

4) there is a strong link between the regualted activity and that effect

Question 4

nondelegation doctrine

Answer 4

prohibits congress from delegating purely legislative powers but allows congress to delegate its incidental powers (rulemaking, legisilative enforcement) if it provides an intelligble principle - ie, a clear statement defining

1) the policy congress seeks to advance
2) the agency to carry out that policy, and
3) the scope of that agency’s authority

Question 5

level of scrutiny applies to content based law

Answer 5

strict scrutiny

gov show that it is necessary and narrowly tailored (least restrictive means) to achieve a compelling gov interest

very little over or under inclusivness is allowed

Question 6

level of scrutiny applied to a content-neutral law

Answer 6

intermediate scrutiny

permissible so long as the gov can show that it is narrowly tailored to achieve an important gov interest and leaves open alternative channels of communication

narrowly tailored = challenged law would achieve gov’s interest lest effecively if it were less or under inclusive

TPM test is satisifed so long as the reg promotes a substantial gov interest that would be achieved less effectively absent the regulation and leave open ample channels of communication

Question 7

Central Hudson test for gov regulation of commercial speech

Answer 7

1) speech must be lawful and not misleading,

2) statute must serve a substanital gov interest,

3) statute must directly advance that interest, and

4) the statute must be narrowly tailored

Question 8

all race based classifications imposed by gov must surivive strict scrutiny which requires the gov to prove

Answer 8

that these classifications are necessary to achieve a compelling gov interest - eg, to remedy its own history of racial discrimination*

Question 9

express preemption occurs when

Answer 9

a fed law is enacted under an exclusive fed power or explicitly bars state regulation

Question 10

implied preemption occurs when

Answer 10

there is no room for state regulation (field),

it is nearly impossible to comply with both laws (direct conflict), or

the state law frustrates the fed law’s purpose (indirect conflict)

Question 11

the _____ clause renders a state law void and without effect when a fed law expressly or impliedly preempts it

Answer 11

supremacy clause

Question 12

scotus has discretion to exercise appellate jurisidction over state spreme court decisions that present a federal Q unless

Answer 12

those actions are based on adequate and independent state grounds

once scotus reslves fed Q, must remand case to state supreme court if any state issues remain

Question 13

an exaction amounts to a 5th amend taking requiring just comepnsation unless government establishes

Answer 13

exaction exists when the gov enacts a reg that restricts the owners use of a property as a cond to allowing the owner to develop the land

these are taking under 5A unless gov can show a legit gov interest and rough proportionality (adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner)

Question 14

exaction occurs when

Answer 14

a local gov conditions the issuance of a building or developmnt permit on a landowners promise to dedicate part of the property for public use

Question 15

severe (discriminatory) electorcal regulations are subjec to

Answer 15

strict scrutiny

Question 16

ordinary (non-discriminatory) electoral regs are subject to

Answer 16

rational basis

Question 17

gov’s regulation of protected commerical speech must

Answer 17

1) directly advance a substanital gov interest,

2) not be more extensive than necessary to serve that interest (satisifed if there’s a reasonable fit between the gov interest and the means chosen to achieve it)

Question 18

1A protects the right of the press to

Answer 18

publish lawfully obtained, truthful information about matters of public signficance

1A doesnt shield press from generally applicable laws even if laws incidentially affect the press’s ability to gather and report the news

Question 19

process for a treaty

Answer 19

approved by 2/3rd vote in senate (not house) before it can be ratified

then, treaty takes precedence over any conflicting state law pursuant to supremacy clause

Question 20

Market participant exception

Answer 20

The state may discriminate in favor of residents when buying or selling goods and services because the state is acting as a “market participant” rather than as a regulator of an economic activity.

Question 21

dormant commerce clause analysis

Answer 21

1) is the statute facially discriminatory?

2) if no, Q is whether it effectuates a legit local public interest and whether the burden if any is clearly excessive in relation to the putative local benefits

3) if it is facially discrim then its invalid unless narrowly tailored to meet a legit purpose (less discrim means).

Question 22

11th amend

Answer 22

bars private parties and foreign govs from suing a state in federal court without state’s consent

doesnt bar suits brought by US or another state

*doesnt apply to suits vs public officials in their official capacity seeking an injunction

Question 23

a state may treat men and women differently consistent w/ equal protections and provide separate facilities for each gender if state can

Answer 23

1) demonstrate the exceedingly persusaive justification for the separate treatment, and

2) demonstrating that the sepratae facilities are subsntially equivalent

Question 24

actions of private parties constitute state actions when

Answer 24

1) they have prformed a traditional public function,

2) there’s enforcement of certain private contracts;

3) there is joint action or entanglement between state and private actor; or

4) there’s state encouragement of private discrimination

Question 25

analysis for 1A free speech viol

Answer 25

1. state or private actor?
2. if private actor, are they a state actor under public function standard?
3. content based or content neutral reg?

Question 26

a law regulating unprotected speech needs to pass

Answer 26

rational basis

incitment, fighting words, threats, obsecnity, false

Question 27

SCOTUS has long held that public schools may not force their students to participate in

Answer 27

flag salute ceremony when it offends the political or religious beliefs of the students or their families

Question 28

when expression takes place on gov owned property, gov regulation of expression is asserted under the

Answer 28

public forum doctrine.

public street and sidewalks = traditional public forum

Question 29

when a state tries to reg expressive activity in a traditional public forum, it is prohibited from doing so based on the expressive acticity’s content unless

Answer 29

it survive strict scrutiny (narrowly tailored to achieve compelling gov interst)

Question 30

SCOTUS has held that the gov’s interest in keeping streets clean is insufficent to ban leafletting in the public streets as the gov power to reg with incidental effects on public sidewalk speech is very limited

Answer 30

.

Question 31

14th amendment equal protection

Answer 31

not state shall deny to any person within its jurisidction the equal protection of the law

Question 32

suspect classes

Answer 32

race
religion
citizenship
national origin

Question 33

a federa statue abrogates 11th amendment immunity if

Answer 33

1) statute unambigiously asserts that it does so; and

2) congress enacted the statute under a poewr that may abbrogate 11th amendment immunity

Question 34

NY v. Garcia

Answer 34

congress may not commander the state to regulate private conduct

Question 35

US v. VA

Answer 35

state laws that make classifications on basis of gender are uncosntitutional unless state can estalblish an exceedingly persuasive jusification for the classification

“exceedingly persussaive justificatin” servces important gov interest and doesnt rely upon outdated or overbroad generalizations and stereotypes

*case w/ separate men and women military schools

Question 36

congress may condition receipt of federal funds to states if

Answer 36

1.) spending must be for general welfare

2) cond imposed by congress must be imposed unambiguously

3) cond imposed must be related to the federal interest in particular national projects/programs

4) cond must not be used to induce states to engage in unconstitutional activities,

5) a cond will be deemed improper if its so coercive to pass the point at which pressure turns into compulsion

Question 37

10th amendment

Answer 37

limits federal powers
federal gov may neither issue directeves requiring the states to address particular problems nor command states officers or their policital subdivision to administer or enforce a federal regualtory program

Question 38

15th amendment prohibits state and federal gov from

Answer 38

abridging right to vote by direct limitation or diluting voting power on the basis of race, color, or previous servitude

Question 39

Standard applied to burdens on 1A free exercise of religion

Answer 39

direct burdens = strict scrutiny

indirect burdens = rational basis

Question 40

Endorsement test

Answer 40

government displays of religion symbols violate establishment clause when overall context of the display would cause a reasonable person to conclude the display endorses religion

Question 41

congress has the sole power to impeach and remove

Answer 41

federal judges

Question 42

intermediate scrutiny

Answer 42

gov must prove that the classification is substantially related to an important gov interest

Question 43

dormant commerce clause

Answer 43

generally prohibits states from discriminating against or unduly burdening interestate commerce

A nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless be unconstitutional if the burden it imposes is “clearly excessive in relation to the putative local benefits.”

*state can do so when congress explicitly authorized the conduct

Question 44

supremacy clause

Answer 44

fed law takes precedence over conflicting state laws so long as fed law is a valid exercise of congress’ emumerated powers

Question 45

a state tax affecting foreign commerce must

Answer 45

satisfy complte auto requirements: substantial nexus, fairly apportioned, non-discriminatory, and fairly related

such a tax must not create an inevitable risk of multiple taxation or prevent fed gov from speaking with one voice in foreign affairs

Question 46

commerce clause

Answer 46

congress may enact 3 types of regulations

1) regulate channels of interstate commerce (phone lines + highways),

2) regulate people and instrumentalities that work and travel in the channels of interstate commerce,

3) regulate activities that substantially affect interstate commerce

Question 47

gov can interfere w/ 1A freedom of assocation by punishing persons who

Answer 47

1) are active memebrs of subverise organization;

2) know of the org’s illegal objectives

3) specifically intend to further those objectives

Question 48

under 1A freedom of association, the gov cannot force a group to…

Answer 48

accept members who would significantly burden its views unless that interference is necessary to achieve a compelling gov interest

Question 49

congress can only overturn an exec agency’s actions by

Answer 49

enacting new legilsation which requires bicameralism and presentment

Question 50

pres has absolute authority to remove fed exec officers. congress may impose restrictions on this process only for officers who

Answer 50

1) belong to a mutlimeber body that’s balanced along partisian lines and exericses exec power; or

2) lack policymaking or admin authority

Question 51

once congress delegates power to an exec agency, it cannot interfere w/ agency’s functions without

Answer 51

satisfying the legilsative action process (bicameralsim and presentment)

any attempt to bypass this process is an unconstitutional legislative veto

Question 52

state’s police power

Answer 52

power to enact and enforce laws that are reasonably related to protecting public health, safety, and welfare

states cannot violate other consitutional provisions when using this power

*no federal power

Question 53

Congress has power to regulate and make excpetions to SCOTUS’ appellate jurisidction article III

Question 54

speech or debate clause

Answer 54

immunizes members of congress from criminal and civil liability for official legislative activities (speech given on House/Senate floor)

Question 55

indirect federal taxes comply with taxing and spending clause so long as they are

Answer 55

1) indentical in every state where taxed goods are located; and

2) reasonably related to revenue production

Question 56

power to tax and spend

Answer 56

congress has broad power to tax and spend for the general welfare

*congress can never impose taxes or exported goods or services and activities closely related to export process

Question 57

congress can use its taxing power

Answer 57

directly (on persons/real property) - so long as the tax is apportioned proportinately among the states and reasonably related to revenue production

indirectly (goods/transactions) - so long as the tax is indentical in every state and reasonably related to revenue production

Question 58

a plaintiff taxpayer has standing when suit…

Answer 58

1) challenges legislation enacted under congress’s taxing and spending power; and

2) alleges a violation of a specific constitutional limitation on that power (establishment clause)

Question 59

the historical test

Answer 59

allows the government to pass through first amendment establishment clause a wall separating church and state when the government action has historically been permitted in accordance with the organization meaning of the constitution

Question 60

US v. O’Brien

Answer 60

whether a law that regulates speech related conduct serves an interest within which the government regulator powers that’s important, substantial, and unrealted to suppression of expression and no greater than necessary to serve state’s interest

Question 61

a limited public forum is created…

Answer 61

when a government entity could close a location to speech but instead opens it to speech

Question 62

Discriminatory Impact Test

Answer 62

In Exxon the Court read the Hunt discriminatory-impact test to apply to a direct impact on out-of-state firms in the primary market (apples) regulated by the state.

Question 63

City of Philadelphia v. New Jersey

Answer 63

where the Court invalidated a NJ law prohibiting the disposal of out-of-state waste in New Jersey landfills, effectively precluding the export of waste disposal services and preferring in-state consumers.

The Court made clear that it does not matter whether the law has a legitimate environmental purpose; the state may not use discriminatory means to accomplish it. Insofar as the law is discriminatory, it is invalid unless it is narrowly tailored to meet a legitimate, nonprotectionist purpose.

Question 64

Doctrine of Ex parte Young

Answer 64

“Official-capacity actions [against state officials] for prospective relief are not treated as actions
against the State.” Thus, even when a damages claim against the state is barred under the
Eleventh Amendment, a suit against public officials in their official capacity seeking an
injunction may be maintained.

Question 65

5th amendment taking

Answer 65

a taking ocurs when the gov destorys private property or prop rights - including interests transferable by will or intetate succesion.

the gov may effectuate a taking only for a public use and must provide just compensation to the owner

Question 66

non-physical takings into three categories

Answer 66

1) a “total regulatory taking” (i.e., regulations that completely deprive an owner of all economically beneficial use of her property)

(2) “a Penn Central taking” (for which courts will consider several factors such as the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and whether it amounts to a physical invasion or instead merely affects property interests through some public program adjusting the benefits and burdens of economic life to promote the common good), and

(3) a “land-use exaction” (more specifically, a government demand that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit)

Question 67

In Loretto, SCOTUS held that a permanent phsyical occupation authorized by the gov is a taking…

Answer 67

without regard to the public interets that it may serve

the fact that the occupation will be by another entity does not change the analysis

Question 68

public purpose test for 5A taking

Answer 68

court ask deferentially only whether the municipality’s taking is rationally related to a conceivable public purpose.

court will recognize that the ‘public use’ requirement is contemporaneous with
the scope of a sovereign’s police powers.

scotus has held that a State may transfer property from one private party to another if future use by the public is the purpose of
the taking

Question 69

Free exercise of religion 1A

Answer 69

right to practice religion or no religion w/out government interference

Question 70

the free exercise clause allows the gov to question

Answer 70

whether a religious belief is sincerely held but not whether that belief is reasonable/true

Question 71

the political question doctrine prohibits federal courts from

Answer 71

adjudicating political questions

Question 72

a case presents a nonjusticiable political question when

Answer 72

the constitution has reserved decision making on an issue to the executive or legislative branch and/or

the matter is inherently not one that the judiciary can decide - ie, there is a lack of judicially discoverable and manageable standards to resolve this issue

Question 73

the taxing and spending clause grants congress extensive power to

Answer 73

appropraite federal funds

congress can then require that the pres and fed agencies spend the funds as explicily directed in a fed statute

Question 74

a federal officer is someone who

Answer 74

1) holds a continuing public office and,

2) has signficant discretionary authority to administer or enforce laws

supervised soley by the pres and must be appointed by the pres with the senate’s advice and consent

ex: supreme court justice, ambassador, cabinet official

Question 75

inferior federal officers are

Answer 75

appointed by the pres with senate approval unlesss congress delegates appointment to pres, fed courts, or heads of exec depts

supervised by princ fed officers

ex: independent counsel, judicial clerk, admin law judge

Question 76

state can tax fed gov affiliates (contractors) unless

Answer 76

1) congress granted the affiliate immunity,

2) the tax is discrimintaory, or

3) the tax substanitally interferes w/ the affiliate’s fed purpose or duties

Question 77

equal protection challenges are usually evaluted under

Answer 77

rational basis whic require challenger to prove that the discriminatory gov action has no rational relation to a legit gov interest

Question 78

fundamental rights

Answer 78

1A freedoms
Voting
Interstate travel
Privacy (marriage, parental rights, sexual acts, contraceptives)

FIRST VIP

Question 79

the gov cannot condition hiring a gov employee or contractor based on his political view or affiliates unless

Answer 79

these factors are required for effective job performance

Question 80

Article 5 priv and immunities clause

Answer 80

prohibits states from discriminating against out of state citizens by denying them a right of state citzenship unless

1) nonresidents cause or contribute to the problem that the state is attempting to solve, and

2) the discrimination bears a substantial realtionship to the state’s objective

Question 81

establishment clause - coercion test

Answer 81

gov cannot force particiaption in a religious exercise

school sponsored prayer in public schools viols establishment clause even when participatin is vol

Question 82

Youngstownframework is used to determine the extent of president’s authority to act by considering whether there was congressional:

Answer 82

authorization - in which case the pres had max authority to act and that act is likely valid

silence - in which case the act is valid so long as it (1) fell w/in pres’ article II powers, and (2) did not interfere w/another branch’s powers, or

opposition - in which case the pres had minimal authority to act and that act is likely invalid

Question 83

a law is content based if it

Answer 83

applies to particular speech because of the topic discussed or the idea the message expressed

Question 84

the political question doctrine bars action that require courts to resolve issue concering diplomatic recongnition of a foreign gov

Answer 84

courts have the power to determine interbranch dispputes involving foreign affairs when they concern the validity of a fed statute

Question 85

due process clause applies when a law impacts ___ persons, while the equal protection clause applies when the law impacts a ____ of persons

Answer 85

all; particular class

Question 86

quasi suspect classes

Answer 86

gender/sex, legitmiacy

get intermediate scrutiny - substanitally related to important gov interest

Question 87

necessary and proper clause allows congress to

Answer 87

take actions that are reasonably necessary to carry out its enumerated article 1 powers

Question 88

congress has the power to regulate and make exceptions to SCOTUS’ appellate juris under

Answer 88

article III

Question 89

when a public employee can only be fired for cause, due process generally requries that the employee recieve

Answer 89

1) notice of any alleged misconduct,

2) a pre-termination hearing to respond to the allegation, and

3) a post-termination evidentiary hearing to determine if the dismissal was warranted