Con Law

Question 1

Religious accommodations constitutional?

Answer 1

Federal gov can do so itself, state govs can do so themselves; but fed gov cannot require it of others

Question 2

ministerial exception

Answer 2

one area where religious accommodation is allowed–gov cannot impose nondiscrimination laws on religious institutions wrt their ministers?

Question 3

Can schools prevent religious student orgs from meeting in schools?

Answer 3

No

Question 4

Content-based regs of speech trigger which scrutiny?

Answer 4

Strict scrutiny

Question 5

Test for regulation of expressive conduct/symbolic speech

Answer 5

Upheld if further an important interest that is unrelated to the suppression of expression, and the burden on expression is no greater than necessary (ex: flag desecration law unconstitutional, but public nudity law constitutional)

Question 6

vagueness (wrt speech reg) definition and constitutionality

Answer 6

a law that gives no clear notice of what is prohibited; violated DP

Question 7

over-breadth of speech reg

Answer 7

when a law burdens sub more speech than necessary for compelling state interest (ex: law banning all nudity in drive-in movies)

Question 8

prior constraints wrt speech are…

Answer 8

disfavored (so basically cannot get injunction for publication)

Question 9

content neutral/time, place and manner rules

Answer 9

apply in public forums (not including airports); 1) law must be content neutral (neutral on its face; neutral as applied; must not allow executive discretion); 2) alternative channels must be left open; 3) must narrowly serve a significant (NOT COMPELLING) state interest

state may restrict obscenity, subversive speech, fighting words, defamation, or commercial speech

Question 10

rule for laws regulating non-public forums

Answer 10

any reasonable regulation will be upheld (ex: viewpoint discrim invalid)

Question 11

limited public forum

Answer 11

not a public forum but gov has chosen voluntarily to open to the public (ex: municipal theater)

Question 12

Constitutionality of content-based regs?

Answer 12

Almost always struck down

Question 13

Obscenity definition

Answer 13

4Ss: 1) sexy; 2) sick to society (patently offensive); 3) standards (proper); 4) serious value (lacks it; determined by court according to national standard (good reviews))

Question 14

Rules for regulation of child pornography

Answer 14

Can be prohibited even if not legally obscene

Question 15

Rule about land use restrictions

Answer 15

Narrowly-drawn ordinances can regulate the zoning of adult theaters, but cannot ban altogether

Question 16

Incitement rule

Answer 16

Speech not protected if it’s incitement to immediate violence

Question 17

Fighting words definition and rule

Answer 17

Words that by their nature are likely to provoke immediate breach of the peace; must be aimed at someone (general vulgarity doesn’t count); not protected speech in theory, but often unconstitutional for vagueness/overbreadth

Question 18

Defamation definition and rule

Answer 18

False statements of fact (not opinions) that damage a person’s rep; can be regulated even though content-based

Question 19

Defamation rule for public officials/figures

Answer 19

Can recover only on proof of knowing or reckless falsity

Question 20

Defamation rule for private people

Answer 20

Can recover on proof of negligent falsity

Question 21

Commercial speech test

Answer 21

Commercial speech = regulation of ads, commercial speech directly. Intermediate scrutiny: reg must directly advance a sub (NOT COMPELLING) gov interest and must be narrowly tailored to that interest. Most regs of commercial speech struck down, as long as truthful and informational. Misleading commercial speech can be suppressed.

Question 22

Can gov as a speaker do content-based discrim?

Answer 22

Yes

Question 23

What are the 1A rights fo corps?

Answer 23

Same as that of individuals (ex: can’t suppress their political speech)

Question 24

Rule for freedom of the press

Answer 24

Media has no special privileges (but gov has some additional authority to reg broadcast)

Question 25

Freedom of association definition

Answer 25

Cannot be punished/disadvantaged for political associations (ex: loyalty oaths (except for US constitution) are unconstitutional for vagueness/over-breadth)

Question 26

Association rights of political parties

Answer 26

States cannot require open primaries, but can require semi-closed primary system even if party wants to permit anyone to vote. State may not prohibit a political party from allowing independents to vote in its primary. State may refuse to grant political party’s candidate access to gen election ballot unless they show public support through signatures, registrations or previous success.

Question 27

Rules for free speech rights of public employees

Answer 27

Generally cannot be hired or fired based on political party, philosophy or act of expression (exception: policymaking and confidential employees)

Question 28

Rule for regulation of campaign contributions

Answer 28

Can be regulated as long as limits not unreasonably low

Question 29

Rule for regulation of campaign expenditures

Answer 29

Cannot be regulated

Question 30

Coordinated expenditure definition and rule

Answer 30

Disguised campaign contribution; treated as contribution and can be regulated

Question 31

Constitutionality of laws banning judicial candidates from personally soliciting campaign contributions

Answer 31

Constitutional

Question 32

Fed courts limited to cases and controversies…

Answer 32

1) arising under; 2) when US is a party; 3) btw states or between state and another state’s citizens; 4) diversity jx; 5) btw state/its citizens and foreign states/its citizens

Question 33

11A Sovereign Immunity

Answer 33

Provides states with sovereign immunity which prohibits federal suits by someone of another state or country for money damages or equitable relief. However, federal courts do have the authority to enjoin state officials from violating federal law.

Also immunizes state officials from suit in fed court for violating state law?

Congress, acting pursuant its Article I powers, generally cannot abrogate state immunity. But if Congress had created this cause of action under the Thirteenth, Fourteenth, or Fifteenth Amendment, the state’s lack of consent would not have preserved its sovereign immunity.

Question 34

11A exceptions

Answer 34

1) consent; 2) injunctive or declaratory relief; 3) damages paid by state officer; 4) congressional enforcement of 13A, 14A, 15A rights

Question 35

SCOTUS has original jx over…

Answer 35

all cases affecting ambassadors, other public ministers and consults and those in which a state is a party

Question 36

Can Congress expand or limit SCOTUS original jx?

Answer 36

No

Question 37

Test for reviewability of state court judgments by SCOTUS

Answer 37

A final state court judgment resting upon adequate and independent state grounds is not reviewable by SCOTUS

Question 38

Standing requirements

Answer 38

1) injury in fact; 2) causation; 3) redressability; 4) prudential standing

Question 39

Define injury in fact

Answer 39

concrete and particularized; need not be physical or economic; future injury must be actual and imminent

Question 40

Prudential standing definition

Answer 40

P is a proper party to invoke judicial resolution of the dispute

Question 41

Taxpayer standing rule and exceptions

Answer 41

No taxpayer standing except to litigate how much is owed on your tax bill and to challenge gov expenditures as violating the Establishment Clause (but does not apply to the expenditure of general discretionary funds by the executive branch).

Question 42

Third-party standing rule

Answer 42

Generally not allowed; exceptions:

1) When third party unable to assert his own rights.
2) Special relationship btw P and third party. Ex: A private school asserting its students’ rights to attend despite a statute requiring attendance at public schools.
3) P’s injury adversely affects P’s relationship with third party.

Question 43

Organizational standing rule

Answer 43

Org can sue on its own behalf or on behalf of its members if 1) its members would have standing to sue in their own right, and 2) the interests at stake are germane to the org’s purpose.

Question 44

Section 1983 rules

Answer 44

Provides method to enforce substantive fed rights. Applies to suing individual gov employees in their individual capacities (including municipalities and local govs). P must show that D was acting under color of state law.

Question 45

Ripeness requirement

Answer 45

P must have experienced a real injury (or imminent threat thereof)

Question 46

Mootness requirement

Answer 46

Must be a live controversy at each stage of review

Question 47

Mootness requirement exceptions:

Answer 47

1) Capable of repetition but evading review; 2) D voluntarily ceases wrongful action upon commencement of litigation; 3) Collateral legal consequences can be imposed based on the challenged conviction; 4) Named P’s claim in a class action suit is resolved (does not render class action moot)

Question 48

Are advisory opinions ok?

Answer 48

No

Question 49

Are declaratory judgments ok?

Answer 49

Yes, but challenged action must pose a real and immediate danger to party’s interests

Question 50

What is the political question doctrine?

Answer 50

A doctrine of justiciability; question not subject to judicial review when a) constitution assigned decision making on this subject to a diff branch or b) the matter is inherently not one that the judiciary can decide

Question 51

What is the abstention doctrine?

Answer 51

A fed court may abstain from deciding a claim when a strong state interest is at stake

Question 52

Describe congress’s commerce power

Answer 52

The Commerce Clause gives Congress the power to regulate any activity, intrastate or interstate, that is itself “commercial” or is an essential part of regulation of a larger commercial activity and that, when considered in the aggregate, has a “substantial economic effect upon” or “effect on movement in” interstate commerce. If intrastate activity is not itself sufficiently commercial, as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total activity.

Congress has power to regulate the channels and instrumentalities of interstate commerce, and any activity (including intrastate) that sub affects interstate commerce (judged in the aggregate).

Congress’s power under the Commerce Clause extends to environmental laws.

Question 53

Can congress mandate that people not engaged in commercial activities engage in them?

Answer 53

No

Question 54

Describe congress’s taxing power

Answer 54

Congress has plenary power to impose taxes to raise revenue through General Welfare Clause; fine as long as it has a reasonable relationship to revenue production

Question 55

Describe Congress’s spending power

Answer 55

Congress has the power to spend for the general welfare

Question 56

Does Congress have the power to condition federal funding and how?

Answer 56

Yes. Condition must 1) be for the general welfare; 2) be unambiguous; 3) relate to fed interest in particular national projects or programs; 4) not induce states to act unconstitutionally; and 5) not exceed the point at which pressure turns into compulsion.

Question 57

What are Congress’s war related powers?

Answer 57

Power to declare war; raise and support armies; provide and maintain a navy; provide for the national defense (in both wartime and peacetime); to try enemy soldiers, enemy civilians, and current members of the US armed forces (but not US civilians); to authorize pres to call national guard units to execute fed laws, suppress insurrections, and repel invasions, including in domestic situations and non-emergency circs, though limited by statute

Question 58

Do all constitutional protections apply to military tribunals?

Answer 58

No

Question 59

Describe Congress’s property power

Answer 59

Congress may only take private prop for public use with just compensation and to effectuate an enumerated power

Question 60

Describe Congress’s powers over aliens and citizenship

Answer 60

Congress has plenary power over aliens, but subject to DPC for aliens within the US; Congress has exclusive authority over naturalization.

in exercising its plenary power over immigration, Congress could lawfully “discriminate” against aliens in ways that would be unconstitutional if applied to citizens (e.g., setting lower quotas for Africans than for Scandinavians, which would otherwise be race discrimination). Likewise, although illegitimacy is a quasi-suspect classification, and discrimination against illegitimate children may be struck down on Equal Protection grounds, Congress could discriminate against illegitimate children who are aliens in a way that it could not discriminate against illegitimate children who are citizens.

Question 61

Describe the Necessary and Proper Clause

Answer 61

Gives Congress power to enact any leg necessary and proper to execute any authority granted to any branch of the fed gov. Not an independent source of power; it merely gives Congress the power to execute specifically granted powers.

Doesn’t need to be directly related.

Question 62

What is the 13A?

Answer 62

Under the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating involuntary servitude. The Thirteenth Amendment is the only amendment that authorizes Congress to regulate purely private conduct. Therefore, the Court may rely solely on the Thirteenth Amendment to uphold a congressional law punishing involuntary servitude committed by private actors.

Question 63

What is the 14A?

Answer 63

Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce EP and DP rights guaranteed by the amendment.

But does not expand those rights or create new ones (they are defined by the judiciary per separation of powers doctrine).

Addresses state government infringement upon EP and DP; does not give Congress the power to regulate wholly private conduct.

Question 64

14A test for legislation

Answer 64

There must be congruence and proportionality btw injury to be prevents/remedied and means adopted to achieve that end

Question 65

What is the 15A?

Answer 65

Prohibits state and fed govs from denying any citizen the right to vote on basis of race, color or previous condition of servitude.

Congress cannot treat states diff and thereby impinge on their equal sovereignty unless the diff treatment is rationally justified by current circs.

Question 66

What is the president’s pardon power?

Answer 66

Pres may grant a pardon for fed offenses, not state crimes, at any time after commission of the offense. President’s power to pardon does not extend to impeachment.

Question 67

Describe pres’s veto power

Answer 67

Pres has 10 days to act on proposed leg. If signs, becomes law. If vetos, Congress can override by 2/3rds in each house. If does nothing and Congress in session, becomes law. If does nothing and Congress not in session at end of 10-days, does not become law (pocket veto) and cannot be overriden.

Question 68

Who is a PAS?

Answer 68

All officers of the US

Question 69

What rules govern a president’s removal of executive appointees?

Answer 69

Pres can generally remove any exec appointee without cause or Senate approval

Question 70

What is the Take Care Clause?

Answer 70

Imposes duty on the pres to faithfully exec laws, even if he disagrees with them

Question 71

congress vs. pres on war powers

Answer 71

only congress can declare war, but pres can take military action without a declaration of war in the case of actual hostilities against the US; congress may limit pres’s military activities through exercise of its military approp power

Question 72

what is the treaty process?

Answer 72

pres has exclusive power to negotiate them; they may only be ratified by approval of 2/3rds vote of senators present

Question 73

describe executive agreements

Answer 73

pres has power to enter into exec agreements with foreign nations and senate approval is not required

Question 74

what is the impeachment process?

Answer 74

house of reps may impeach (bring charges) by majority vote; senate tries the impeached official (2/3rds vote for conviction)

Question 75

if congress explicitly mandates expenditure of funds, can pres not use them?

Answer 75

no

Question 76

are legislative vetos constitutional?

Answer 76

no

Question 77

What is the rule about delegation of leg powers?

Answer 77

Ok if Congress specifies “intelligible principles” to guide the delegate.

Almost any guidance to the delegate is considered sufficient, and there is almost no practical limitation to Congress’s ability to delegate. Almost all language in delegating legislation has passed the intelligible standards requirement, including broad guidance such as “as public interest, convenience, and necessity require.”

The power to impeach and the power to declare war are considered non-delegable.

Question 78

what powers can congress not delegate to the exec?

Answer 78

1) impeachment power, 2) power to declare war

Question 79

can congress reinstate the right to bring a legal action after the judgment in the action is final?

Answer 79

no

Question 80

what immunities does a judge have?

Answer 80

a judge has absolute immunity from civil liability for damages resulting from judicial acts

Question 81

what immunities do legislators have?

Answer 81

no civil or crim liability for statements and conduct made in the regular course of leg process by members of congress

Question 82

what is exec privilege?

Answer 82

priv wrt disclosure of confidential info by exec branch to the judiciary or congress

Question 83

what immunities does the exec have?

Answer 83

pres may not be sued for civil damages wrt any acts performed as part of the pres’s official responsibilities; but no immunity from civil action based on conduct alleged to have occurred before pres took office or completely unrelated to carrying out his job–can be subject to such suit even while in office.

Question 84

what are the exclusive fed powers?

Answer 84

includes power to coin money, enter into treaties, declare war and over citizenship

Question 85

What is the Supremacy Clause?

Answer 85

Fed law supersedes conflicting state law

Question 86

When do states have power to reg the fed gov?

Answer 86

When permitted by Congress or not inconsistent with fed policy

Question 87

When can the states tax the fed gov?

Answer 87

When it’s just a generally applicable indirect tax that does not unreasonably burden them. Otherwise not.

Question 88

What is the anti-commandeering principle?

Answer 88

Congress cannot commandeer state legislatures by commanding them to enact specific leg (or prohibiting a state from enacting new laws)

Question 89

What is the rule for fed taxation of a state?

Answer 89

Allowed, but states have partial immunity from direct fed taxation that would unduly interfere with the performance of the states’ sovereign functions of gov.

Question 90

Describe the Dormant Commerce Clause

Answer 90

Restricts the power of the states to act with regard to interstate commerce. If Congress has not, states can regulate interstate commerce so long as regulation does not 1) discriminate against out-of-state commerce; 2) unduly burden interstate commerce; or 3) regulate wholly out-of-state activity.

Dormant Commerce Clause applies only when a state discriminates against an out-of-state commercial actor,

Question 91

When can a discriminatory state or local reg be upheld as necessary to an important state interest?

Answer 91

1) An important local interest is being served; And 2) no other nondiscriminatory means are available to achieve that purpose. These are rarely upheld. But not discriminatory just bc the entire burden of reg falls on out-of-state businesses.

Question 92

What are the exceptions to the Dormant Commerce Clause?

Answer 92

1) Necessary to an important state interest; 2) Market participant exception; 3) Traditional gov function; 4) Congressionally permitted discrimination

Question 93

What is the market participant exception to the Dormant Commerce Clause?

Answer 93

A state can favor local commerce or discrim against nonresident commerce like a private business, if the state is acting as a buyer or seller (i.e. not as a market regulator). But this exception does not apply to challenges pursuant to the Privileges and Immunities Clause of Art. IV.

Question 94

What is the exception to the market participant exception to the Dormant Commerce Clause?

Answer 94

Challenges pursuant to the Privileges and Immunities Clause of Art. IV.

Question 95

What is the traditional gov function exception to the Dormant Commerce Clause?

Answer 95

State and local regulations can favor state and local gov entities (but not private entities) if the entities are performing a traditional gov function (ex: waste disposal).

Question 96

Describe the “congressionally permitted discrimination” exception to the Dormant Commerce Clause.

Answer 96

Must be unmistakably clear that Congress intended to permit the otherwise impermissible state reg.

Question 97

What is the test for determining if a nondiscriminatory state reg imposes an undue burden on interstate commerce (in violation of the Dormant Commerce Clause)?

Answer 97

Balancing test: purpose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives.

Question 98

What is the test for how states can regulate interstate commerce (assuming Congress has not acted in the area and it does not discriminate against or unduly burden interstate commerce)?

Answer 98

1) Substantial nexus btw the activity being taxed and the taxing state;
2) Fair apportionment such that interstate commerce does not pay total taxes greater than local commerce;
3) Nondiscrimination–no direct commercial advantage to local businesses over interstate competitors (even if neutral on its face); and
4) Fair relationship–tax must be fairly related to the services provided by the taxing state.

Question 99

When can states impose taxes on foreign commerce?

Answer 99

States must have congressional consent to impose import or export taxes (except what is absolutely necessary for executing its inspection laws)

Question 100

How should express preemption be construed?

Answer 100

Narrowly

Question 101

When does implied preemption exist?

Answer 101

Congress intended for fed law to occupy the field; state law directly conflicts with fed law (i.e. can’t comply with both); or state law indirectly conflicts (creating obstacle to law’s purpose).

Question 102

What is the Full Faith and Credit Clause?

Answer 102

Out-of-state judgments must be given in-state effect if 1) the court rendering judgment had jx over the parties and subject matter; 2) the judgment was on the merits; and 3) the judgment was final.

Question 103

Can a private person engage in state action?

Answer 103

Yes–1) traditional gov function or 2) significant state involvement

Question 104

When is a private person engaged in traditional gov functions?

Answer 104

When they carry on activities traditionally performed exclusively by the state (ex: running primary elections).

Question 105

When is there significant state involvement such that a private person is engaged in state action?

Answer 105

A) When there is sufficient mutual contacts btw the conduct of the private party and the gov such that the gov is pervasively entwined with the entity and 1) the constitutional standards should apply to the private actor or 2) a mutual benefit results (ex: joint venture). OR B) When the state creates a private entity by special law for the furtherance of gov objectives and retains permanent control of the entity.

Question 106

Does licensing or regulating a private party create state action?

Answer 106

No, the state must act affirmatively to facilitate, encourage or authorize the activity.

Question 107

When is the state involvement insignificant such that there is no state action?

Answer 107

Businesses that the gov substantially regulates or to which it grants monopoly (ex: nursing homes that accept Medicaid; schools receiving gov funds but operated by a private corp).

Question 108

Describe Procedural Due Process

Answer 108

5A for fed gov, 14A for states; It ensures the necessary procedures (due process of law) are followed before depriving individuals and other persons (ex: corps) of life, liberty or property.

Question 109

Describe substantive due process

Answer 109

Based upon the idea that laws should be reasonable and not arbitrary. Guarantees fundamental rights to all persons. A catch-all for rights not explicitly set forth in the Constitution.

Question 110

What are the general principles of PDP?

Answer 110

Fundamental fairness (including right to be notified of charged or proceedings and opportunity to be heard); neutral decision maker

Question 111

What questions to ask yourself with PDP…

Answer 111

1) Is the threatened interest a protected one? 2) If so, what process is due?

Question 112

What is an impingement on liberty?

Answer 112

a significant gov restraint on one’s physical freedom, fundamental rights, or freedom of choice or action

Question 113

What is required for an impingement on property?

Answer 113

A legit claim of entitlement by virtue of statute, employment contract or custom.

An employee who is not at-will has a legitimate property interest in continued public employment, and is entitled to a fair procedure to protect the employee’s interests if the government seeks to discharge the employee from his position. An employee is entitled to a notice of termination and a pre-termination opportunity to respond, which the employee in this case did not receive.

Question 114

How is the amount of process due determined?

Answer 114

1) the private interest affected; 2) the risk of erroneous deprivation and value of additional safeguards; and 3) the gov’s interest, including the burden (cost) of additional process.

Question 115

How are laws impinging on substantive DP evaluated?

Answer 115

Either using strict scrutiny (for fundamental rights) or rational basis (if interest infringed upon is not fundamental).

Question 116

What is the strict scrutiny test for substantive due process?

Answer 116

Law must be least restrictive (cannot be a less restrictive way to achieve the interest and the law should be neither over- nor under-inclusive) means to achieve compelling (necessary or crucial) gov interest. Burden of proof on gov.

A lesser burden might apply if the right to vote was less drastically threatened.

Question 117

What is the rational basis test for substantive due process?

Answer 117

Law must be rationally related to a legit state interest. Gov’s stated interest need not be one that it offered when law was passed. Usually applies to laws related to lifestyle, taxation, zoning, and punitive damages. Burden of proof on challenger.

Question 118

What are the fundamental rights under SDP?

Answer 118

travel, voting and ballot access, privacy, second amendment

The right to privacy, which includes the right to refuse medical treatment, is a fundamental right

the government may apply the rational basis test to reasonable restrictions on voting (such as a 30-day residency requirement),

Question 119

Can residency requirements or waiting periods be imposed?

Answer 119

Reasonable ones can be imposed on the receipt of some gov benefits.

Question 120

Describe the right to vote

Answer 120

Applies to all fed, state and local elections, including primary elections. Even though fundamental, strict scrutiny does not apply to all laws that restrict this right. The more significant the gov restriction, the greater the degree of scrutiny.

Question 121

Do people have a right to be a candidate for public office?

Answer 121

Yes, right to be considered for office without burden of invidious discrimination.

Question 122

What is the right to privacy?

Answer 122

Includes marriage, contraception, intimate sexual behavior, abortion, parental rights, fam relations, obscene material, right to refuse medical treatment, and right to avoid disclosure of personal med information

Question 123

What is the test for abortion

Answer 123

Undue burden test

Question 124

What is the 2A?

Answer 124

Guarantees individual’s right to possess a firearm, subject to lawful regs

Question 125

Describe Equal Protection

Answer 125

14A EPC for states, 5A DPC for fed gov.

Question 126

How does one evaluate a law that violates EP?

Answer 126

Strict scrutiny, intermediate scrutiny or rational basis

Question 127

When is strict scrutiny used for EP?

Answer 127

If it’s a fundamental right or a suspect classification.

Question 128

What is the strict scrutiny test for EP?

Answer 128

Least restrictive means to achieve a compelling gov interest. Burden of proof on gov. Requires discriminatory intent.

Question 129

When is intermediate scrutiny for EP used?

Answer 129

When classification is based on gender or legitimacy.

Question 130

What is the intermediate scrutiny test for EP?

Answer 130

Substantially related to an important gov interest. Burden appears generally to be be on the gov. Requires discriminatory intent.

mere administrative efficiency is not an “important” government interest sufficient to justify that discrimination

Question 131

What exactly is the intermediate scrutiny test for gender under EP?

Answer 131

Require an exceedingly persuasive justification for the classification, and that separate facilities are substantially equivalent.

Question 132

When is the rational basis test for EP used?

Answer 132

When higher standards do not apply (ex: age, wealth, weight).

Question 133

What is the rational basis test for EP?

Answer 133

Rationally related to a legit gov interest. Burden is on the challenger to show that the law is arbitrary or irrational.

Question 134

What are the suspect classifications?

Answer 134

Race, ethnicity, national origin, alienage.

Question 135

When does school segregation violate the EPC?

Answer 135

Only when it’s de jure (intentional)

Question 136

What level of EP scrutiny is affirmative action subject to?

Answer 136

Strict scrutiny for suspect classes. Intermediate scrutiny for gender. Permissible as a remedy for past discrim.

Question 137

When is an alienage-based classification ok or not?

Answer 137

A fed classification is likely valid unless arbitrary and unreasonable. A state classification is generally subject to strict scrutiny and will be struck down. Exception: participation in gov functions get rational basis.

Question 138

What are the quasi-suspect classifications?

Answer 138

Gender, legitimacy

Question 139

When are laws based on legitimacy upheld?

Answer 139

Basically not at all?

Question 140

What are some nonsuspect classifications that get rational basis?

Answer 140

Age, poverty, sexual orientation (but laws on this latter one basically don’t pass rational basis).

Question 141

What is one person one vote?

Answer 141

An exclusively EP right. When gov establishes voting districts, # of persons in each district must be approximately equal.

Question 142

What are the rules around gerrymandering?

Answer 142

Districts may not be drawn using race as the predominant factor–must survive strict scrutiny. Partisan gerrymandering claims are constitutionally suss but not justiciable.

Question 143

What is the Comity Clause?

Answer 143

Prohibits states from discriminating against citizens of another state with respect to fundamental rights or essential activities (ex: pursuit of employment, transfer of prop, access to state courts). Applies only to citizens, not corps or aliens. Exception: substantial justification–if state can show nonresidents either cause or are part of the problem the state is trying to solve and there are no less-restrictive means to solve the problem.

Question 144

14A privileges and immunities clause description

Answer 144

Prohibits one state from discriminating against the citizens of another state. Protects citizens from infringement by states upon the privileges and immunities of national citizenship. Applies only to citizens (not corps or aliens). Includes rights to travel interstate, vote for national offices, enter public lands, and peaceably assemble. In practice just used for the right to travel.

Question 145

Describe the Takings Clause

Answer 145

A check on the power of eminent domain.

The Due Process Clause of the Fourteenth Amendment incorporates the Takings Clause of the Fifth Amendment, thereby making it applicable to the states.

Question 146

What type of property does the Takings Clause apply to?

Answer 146

Real prop, tangible personal prop, and intangible prop

Question 147

What types of interests does the Takings Clause apply to?

Answer 147

Fee simple, easement, leasehold, lien, and the rights of a property owner (ex: the right to control access to the prop).

Takings Clause generally applies to the government’s taking of an individual’s real property, rather than an employment interest.

Question 148

What is the rule for regulatory takings?

Answer 148

Generally, regulation that adversely affects a person’s prop interest is not a taking, but it is possible if it results in a permanent total loss of the prop’s econ value.

State and municipal zoning laws survive challenges under the Takings Clause as long as the government has a legitimate interest, which includes aesthetic and environmental concerns, and does not deny the property owner the economically viable use of his property.

Question 149

What is the rule for exaction of promises from developer as a taking?

Answer 149

Does not violate the Takings Clause if there is: 1) an essential nexus btw legit state interests and the conditions imposed on the prop owner; and 2) a rough proportionality btw the burden imposed on the prop owner and the impact of the proposed development.

Question 150

What is a just compensation for a taking?

Answer 150

Fair market value at the time of the taking. Measured in terms of the loss to the owner, not the benefit to the gov.

Question 151

Definition and constitutionality of bills of attainder

Answer 151

A leg act that declares a person or group guilty of some crime and punishes them without trial. Applies only to crim or penal measures. Unconstitutional.

Question 152

Definition and constitutionality of ex post fact laws

Answer 152

1) Criminalizes an act that was not a crime when it was originally committed;
2) authorizes a more severe penalty after an act was committed;
3) deprives D of a defense available when the act was committed; or
4) decreases the prosecution’s burden of proof below that required when the act was committed. Unconstitutional.

Question 153

Describe the Contracts Clause

Answer 153

Prohibits states from passing any law impairing the obligation of contracts. Applies only to state legislation–not state-court decisions or fed legislation–that retroactively impairs contractual rights. Does not apply to contracts not yet entered into.

Private contracts, does not apply to fed gov.

Question 154

When gov program shows pref to one religion over another, or to religion over nonreligion, what test is applied?

Answer 154

Strict scrutiny. Lemon test: a gov action that benefits religion is valid if: 1) it has a secular purpose; 2) its primary effect neither advances nor inhibits religion; and 3) it does not result in excessive gov entanglement with religion.

Question 155

When is aid to religiously affiliated institutions ok?

Answer 155

If the aid is secular in nature, used only for secular purposes, and distributed according to religiously neutral criteria.

Question 156

When are tax exemptions for religious institutions ok?

Answer 156

Valid if equivalent to exemptions to other charitable institutions not advancing or inhibiting religion (i.e., cannot be available only to religious orgs).

Question 157

When are tax deductions for parents of students in religious schools ok?

Answer 157

When the deduction is available to all parents.

Question 158

When are tuition vouchers for parents of students in religious schools ok?

Answer 158

Do not violate EP if parents can decide whether to use them at religious or non-religious schools. But a state may deny state funds to a student pursuing a religious career without violating the Free Exercise Clause.

Question 159

What is the constitutionality of the following practices in public schools: A) prayer in bible reading, B) period of silence for meditation or voluntary prayer lacking any secular purpose, C) nondenominational prayer at school events, D) posting the 10 Commandments on public school classroom walls, E) prohibiting the teaching of Darwinism.

Answer 159

All unconstitutional.

Question 160

Can public schools allow student religious orgs to use their facilities?

Answer 160

Yes if they allow other student orgs to use its facilities.

Question 161

What is the rule about religious displays?

Answer 161

A display on public prop not allowed if it has a predominantly religious purpose (like 10 Commandments).

Question 162

When are gov holiday displays ok?

Answer 162

Generally ok unless a reasonable observer would conclude that the display is an endorsement of religion.

Question 163

What does the free exercise clause protect

Answer 163

Freedom to believe in any religion or none at all, and to act.

Question 164

What are the protections on religious belief?

Answer 164

Absolutely protected and cannot be restricted by law. Gov may not 1) deny benefits or impose burdens based on religious belief; 2) require affirmation of a belief; or 3) determine the reasonableness of a belief

Question 165

What are the protections on religious conduct?

Answer 165

Not absolute. State laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to rational basis test.

Question 166

RFRA

Answer 166

Neutral laws of general applicability are subject to strict scrutiny if they sub burden free exercise of religion???

Question 167

What is the rule around regulation of expressive conduct?

Answer 167

Subject to a lesser degree of protection than speech. A regulation of it can be upheld if: 1) the reg is within the gov’s power to enact; 2) it furthers an important gov interest; 3) the interest is unrelated to the suppression of ideas; and 4) the burden on speech is no greater than necessary.

Question 168

if it’s a matter of public concern, what level of scrutiny is it subject to?

Answer 168

strict scrutiny

Question 169

can media public illegally obtained private info?

Answer 169

yes, if third party (unknown to publisher) obtained the info and it involves a matter of public concern

Question 170

is there a privilege for protecting sources?

Answer 170

no

Question 171

what level of scrutiny for content-based regs of cable TV?

Answer 171

strict scrutiny

Question 172

what level of scrutiny is the internet subject to?

Answer 172

strict scrutiny

Question 173

describe the freedom of association

Answer 173

protects right to form or participate in any group, gathering, club or org; but may be justified by compelling state interest

Question 174

when can a person be punished or deprived of public employment based on political association?

Answer 174

if they are an active member of a subversive org; have knowledge of the org’s illegal activity; and have specific intent to further those illegal objectives

Question 175

can bar membership be denied based on association?

Answer 175

no, unless candidate knowingly belongs to a subversive org with specific intent to further its illegal ends or if candidate refuses to answer questions about political affiliations if that refusal obstructs investigation of candidate’s qualifications

Question 176

fusion candidate definition and rule

Answer 176

a candidate who is nominated by more than one political party; state may prohibit a fusion candidate from appearing on general ballot as a candidate of multiple parties

Question 177

Art. IV Privileges and Immunities Clause description

Answer 177

Article IV’s Privileges and Immunities Clause protects citizens of one state from discrimination by another state in their exercise of fundamental rights.

Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities, including the pursuit of employment, transfer of property, access to state courts, and engaging in the political process. Discrimination against out-of-state residents in setting the fee for a commercial activity violates the Privileges and Immunities Clause of Article IV, but similar discrimination for a recreational activity does not, if there is a rational basis for the fee differential.

Does not prevent a state from discriminating against its own citizens. In-state residents have no claims against their own state under the Privileges and Immunities Clause.

Article IV Privileges and Immunities Clause has been interpreted as not applying to corporations.

Question 178

What is the 12A?

Answer 178

Delineates the process by which the President and Vice President are elected to office.

Question 179

General Welfare Clause:

Answer 179

While the General Welfare Clause gives Congress broad power in exercising its taxing and spending powers, it does not give Congress the specific power to legislate for the public welfare in general. Such “police power” is reserved for the states.

Question 180

Statutes designed to punish speech that expresses certain viewpoints are…

Answer 180

Unconstitutional.

Even if the state appears to be enacting a “fighting words” regulation, which can be constitutional to prevent immediate breaches of the peace, such regulations cannot punish only fighting words that express certain viewpoints. For example, the Supreme Court has struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender.

Question 181

Separation of Powers principle:

Answer 181

Under principles of separation of powers, Congress can neither expand nor contract constitutional rights as defined by the Supreme Court.

Question 182

Can a state expand or contract individual rights granted by the US constitution?

Answer 182

A state may expand, but cannot contract, individual rights, such as free speech, granted by the United States Constitution.

Question 183

Bankruptcy Clause:

Answer 183

Bankruptcy Clause gives Congress the power to subject states to its provisions. While the Eleventh Amendment generally immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state, it does not bar the actions of a bankruptcy court that impacts state finances.