Con Law

Question 1

General Statement on Federal/Congressional Power

Answer 1

Federal Government is a government of limited power, may only exercise those powers given to it by the constitution. Congress may also make laws that are necessary and proper to carry on or execute the powers granted to any other branch of the federal government, as well as to implement its own power.

Question 2

Interstate Commerce

Answer 2

Congress has the power to regulate interstate commerce. The commerce power includes the power to regulate:

1. Channels of interstate commerce;
2. Instrumentalities of interstate commerce; and
3. Commercial activities that have a substantial effect on interstate commerce.

Question 3

Delegation of Power

Answer 3

Congress has broad power to delegate its power, except those powers that are uniquely confined to Congress.

1. A delegation will be upheld only if it includes intelligible standards; but
2. The Supreme Court has upheld very vague instructions.

Question 4

The Tenth Amendment

Answer 4

The Tenth Amendment provides that powers not delegated to the federal government by the Constitution, nor prohibited to the States, are reserved to the States.

Under the 10th Amendment the Federal Government is prohibited from commandeering state officials by requiring states to regulate their own citizens.

Question 5

Conditional Spending

Answer 5

The spending clause gives the Congress the power to spend for general welfare. While exercising this power, Congress generally is free to condition its grants. A condition will be found valid if:

1. It is clearly state;
2. It relates to the purpose of the spending program; and
3. It is not unduly coercive.

Question 6

Due Process Clause

Answer 6

The Due Process Clause requires government action to be reasonable, not unreasonable and arbitrary. Protects individuals and corporations.

1. A law affecting fundamental rights will be held to be reasonable only if it passes strict scrutiny. The government must prove the action is necessary to achieve a compelling government interest.
2. In all other cases (except sex discrimination), the rational basis test applies and the challenger must show the action is not reasonably related to a legitimate government interest.

Question 7

Due Process Clause

Answer 7

The Due Process Clause requires government action to be reasonable.

1. A law affecting fundamental rights will be held to be reasonable only if it passes strict scrutiny. The government must prove the action is necessary to achieve a compelling government interest.
2. In all other cases (except sex discrimination), the rational basis test applies and the challenger must show the action is not reasonably related to a legitimate government interest.
3. Implicates right to travel, which includes the right to leave and enter another state AND to be treated equally when becoming a RESIDENT.

Question 8

Whether a Belief is Religious

Answer 8

A belief does not have to be traditional to be protected under the Free Exercise Clause. A belief is treated as religious if it occupies a place in the believer’s life parallel to that occupied by orthodox religious belief. The Free Exercise Clause prohibits courts from determining the validity of a religious belief.

Question 9

Sincerity of a Religious Belief

Answer 9

A court CAN assess the sincerity of a religious belief.

Question 10

Targeting of Religious Conduct

Answer 10

The Free Exercise Clause does not prevent the government from adopting religiously neutral laws, rules, policies, that incidentally interfere with a person’s religious belief.

The FEC does not require the G to except from such religiously neutral action, conduct motivated by religious belief.

Question 11

Establishment Clause/Lemon Test

Answer 11

The Establishment Clause prohibits the government from respecting an establishment of religion. The main test used to determine whether the EC is violated by government action is the Lemon Test. Under the Lemon Test a G action will be held to violate the First Amendment unless:

1. The action has a secular purpose;
2. The primary effect of the action neither advances nor inhibits religion; and
3. The action does not produce excessive government entanglements between government and religion.

Question 12

State Regulation of Commerce

Answer 12

General Rule: Congress’s power to regulate interstate commerce is not exclusive, states may regulate local aspects of interstate commerce unless preempted by federal law.

Question 13

Dormant Commerce Clause

Answer 13

Dormant Commerce Clause:

1. When there is no federal law on point, state laws that discriminate against interstate commerce will usually be held to violate the negative implications of the commerce clause (dormant commerce clause) unless the state can prove that the laws are necessary to achieve an important state interest.
2. State laws that do not discriminate against interstate commerce will generally be upheld unless they UNDULY BURDEN interstate commerce.
3. State or local laws that are enacted to protect state interests are almost always invalid.
4. Court will balance the legitimate NON DISCRIMINATORY state interests against the burden placed on interstate commerce. Courts can also consider if state laws conflict with other state laws.

EXCEPTIONS:

1. State is acting as a market participant, OR state is performing a traditionally public function.

Question 14

Equal Protection Clause

Answer 14

The EPC prohibits the government from unreasonably treating similarly situated persons in a dissimilar manner. It protects corporations and natural persons. Whether discrimination is reasonable under the EPC depends on (i) the basis for the discrimination; and (ii) the interests involved.

1. Where you discriminate on the basis of race, national religion, or a fundamental right, use the strict scrutiny standard. Will be struck down unless you can meet it.
2. If a quasi suspect (gender/legitimacy), use the intermediate scrutiny standard.
3. Everything else is rational basis, and challenge bears the burden of persuasion.

Question 15

Privileges and Immunities Clause of Article IV

Answer 15

The P&I of Article IV provides that citizens of each state shall be entitled to the P&I of the several states. This has been held to prohibit state action that discriminates against citizens from other states when the discrimination involves:

1. Commerce; or
2. Civil liberties.

Question 16

Procedural Due Process

Answer 16

1. The 5th Amendment of the US Constitution is applicable to the states through the Due Process Clause of the 14th Amendment.
2. Prohibits the government from denying a person their interest in life, liberty, or property, without due process of law.
3. Applies when individualized decisions are made.
4. At a minimum due process requires the opportunity to present objections to the proposed government action to a fair and neutral decision maker.
5. The decisionmaker need not be a judge.
6. Whether life, liberty, or property interest is involved is governed by state law.

Question 17

Substantive Due Process

Answer 17

1. Under the Due Process Clause government action that affects a fundamental right will be upheld only if it can withstand strict scrutiny.
2. If a fundamental right is not involved, the government action will be upheld unless it violates rational basis.

One has a fundamental right to vindicate one’s constitutional rights.

Question 18

EPC: Gender Discrimination

Answer 18

1. When discrimination is based on gender, the Supreme Court has held that the government must show an exceedingly persuasive justification.
2. The interest must be genuine not hypothesized.
3. The government may not rely on overbroad generalizations about males and females.
4. In most cases intentional discrimination on gender will be invalid.

Question 19

Standing

Answer 19

Federal Courts will not hear a case unless the party bringing suit has standing. To have standing a litigant must have a concrete stake in the outcome of the controversy.

A litigant will have a concrete stake if the litigant can show:

1. Suffered an injury in fact;
2. That is caused by the conduct complained of; and
3. That can be remedied by the decision in litigant’s favor.

Injury must be specific, need not be economic.

Question 20

Organizational Standing

Answer 20

An organization will have standing to challenge government action that causes injury to its members if the organization can show:

1. An injury to individual members that would give the individuals a right to sue on their own behalf;
2. That the injury is related to the organization’s purpose; and
3. That neither the nature of the claim nor the relief sought requires participation of the individual members in the lawsuit.

Question 21

Commercial Speech

Answer 21

In determining whether commercial speech is valid, first must determine whether the speech involves lawful activity and is not misleading or fraudulent.

Regulation of commercial speech will be upheld if:

1. It serves a substantial government interest;
2. It directly advances that interest; and
3. Is narrowly tailored to achieve that interest.

A regulation will be considered ‘narrowly tailored’ if there is a reasonable fit between the legislation’s end and the means chosen.