Con Law

Question 1

When does the 11th Amendment allow states to be sued?

Answer 1

States cannot be sued for money damages in either federal or state court unless the state 1) consents, or 2) the U.S. Congress expressly says so to enforce 14th Amendment rights.

This protection applies to states and state agencies, NOT local governments

+The US government CAN sue states in federal court

Question 2

What is the key characterization of supreme court granting of a writ of certiorari?

Answer 2

it is discretionary. In fact, it is the only federal court that exercises discretionary jurisdiction

Question 3

How can Congress limit the Supreme Court’s appellate jurisdiction?

Answer 3

Congress can make exceptions to the Court’s appellate jurisdiction by legislating exceptions

Question 4

Where does the adequate and independent state grounds (AISG) doctrine apply?

Answer 4

Only in the US Supreme Court and only when reviewing a state court judgment

Question 5

What does the adequate and independent state grounds doctrine do?

Answer 5

The SC can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on adequate and independent state grounds

Remember, the US Constitution is a floor, not a ceiling.

Question 6

What does independent mean in AISG doctrine?

Answer 6

the state law does not depend on an interpretation of federal law. If the state court is unclear on whether the decision is independent of the federal constitution, the SC CAN review the federal issue

Question 7

What is required for standing to sue?

Answer 7

CAR needed to get to federal court

• causation
• actual or imminent injury
• redressability by a favorable decision

Question 8

How do you determine if an organization has standing?

Answer 8

[Ms. GOP]

consider if its members have standing AND the interest at stake is germane to the organization’s purpose

Question 9

What does redressability mean?

Answer 9

a court can remedy or redress the injury

Question 10

What is the general rule on taxpayer standing?

Answer 10

While a federal taxpayer always has standing to challenge their own tax liabilities, taxpayers do not have standing to challenge government expenditures

There is a very narrow exception for an establishment of religion challenge to specific CONGRESSIONAL appropriations. This can be raised by any taxpayer

Question 11

What is the general rule on legislative standing?

Answer 11

legislators do not have standing to challenge laws that they voted against.

Occasionally, the legislature itself as a body may have standing if the claim concerns its institutional functions

Question 12

What is the general rule on third-party standing (raising the rights of someone else)?

Answer 12

Generally, third party standing is not possible.

However, parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction (e.g., doctors performing abortions on behalf of women, seller of beer on behalf of 18-year-old boys)

Question 13

What must be shown to overcome ripeness?

Answer 13

actual harm or an immediate threat of harm must be shown

Ex: An IMMEDIATE plan to set up a business that violates the law would be ripe

Question 14

What are the two exceptions to mootness?

Answer 14

• injuries capable of repetition, yet evading review (e.g., abortions)
• voluntary cessation (once litigation has commenced)

Question 15

The federal government DOES NOT have a general police power

Answer 15

o

Question 16

What can congress regulate through the commerce power?

Answer 16

ICE

1) the Channels of interstate commerce
2) the Instrumentalities of interstate commerce
3) intrastate and interstate activity that have a Substantial Effect on interstate commerce

+Ex: OSHA applies federal standards even to state and local government employers

Question 17

How is substantial effect on interstate commerce measured?

Answer 17

Whether in the aggregate the activity has a substantial effect on interstate commerce.

Economic activity is presumed to have a substantial effect; non-economic activity requires actually showing that in the aggregate the activity has a substantial effect

Question 18

What happened in Wickard v. Filburn?

Answer 18

growing wheat even for personal use was judged in the aggregate to have a substantial effect on interstate commerce

Question 19

What happened in Gonzalez v. Raich?

Answer 19

the cultivation and medical use of marijuana was judged in the aggregate to have a substantial effect on interstate commerce (particularly C’s attempt to regulate/eliminate the marijuana market)

[Gonzalez and marijuana both are spanishy]

Question 20

What happened in US v. Lopez?

Answer 20

[imagine J LO with a gun outside of a school]

Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school as it could not be proved that there was a substantial effect on interstate commerce

Question 21

What happened in US v. Morrison?

Answer 21

Congress may not, pursuant to its Commerce Clause powers, pass a law that provided a federal remedy for gender-motivated violence as it could not be proved that there was a substantial effect on interstate commerce

Question 22

What is the test for the taxing power?

Answer 22

the tax need only be rationally related to raising revenue

Question 23

What is the anti-commandeering doctrine?

Answer 23

• Congress cannot force states to adopt or enforce regulatory programs.
• Congress cannot commandeer state and local agencies to implement federal programs

Question 24

How can Congress enforce a regulatory program?

Answer 24

• it can essentially bribe a state through use of the spending power
• it can adopt its own regulatory program and enforce it with federal officers

Question 25

What does the 13th Amendment do?

Answer 25

It gives Congress broad powers to legislate against racial discrimination, whether public or private

Question 26

Once an officer is under legislative control, any attempt to give the officer executive power is unconstitutional

Answer 26

o

Question 27

What are the few powers that are exclusively executive, and therefore not subject to statutory control

Answer 27

• pardon power
• veto power
• appointment and removal of executive officers (those who take action on behalf of the U.S.

Question 28

What is needed to ratify a treaty?

Answer 28

2/3 vote of the senate

Question 29

What are negotiation entered into by the President that are NOT approved by the senate?

Answer 29

Executive agreements are presidential negotiations not submitted for approval by the Senate. They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. They do not have the binding status of treaty.

Question 30

What is the general rule on impoundment?

Answer 30

If a statute gives the President discretion to spend or withhold funds, he may do so. But, if a statute unambiguously requires that certain funds be spent on certain
purposes, then the President cannot refuse to do so. There is no power to impound funds.

Question 31

What is the legislative veto?

Answer 31

when Congress passes a law reserving to itself the right to disapprove future
executive actions by simple resolution

+likewise, once C delegates power to an executive agency, it cannot interfere with the agency’s functions without following the bicameralism and presentment process

Question 32

What is the requirement when Congress is delegating powers?

Answer 32

Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power.

This is not a demanding test as almost all delegations of legislative power are upheld.

Question 33

What immunities does the president have?

Answer 33

• ABSOLUTE executive immunity to civil suits for money damages for actions while he is in office.
• no immunity for acts done prior to taking office
• executive privilege not to reveal confidential communications with advisors, but that privilege can be outweighed by a specifically demonstrated need in a criminal prosecution

Question 34

What immunities do judges have?

Answer 34

judges have ABSOLUTE immunity for all judicial acts, but may be liable for non-judicial acts (e.g., employment discrimination)

Question 35

What immunity do federal legislators (and their aides) have?

Answer 35

legislators are protected by the absolute immunity of the “speech or debate” clause. They cannot be prosecuted or punished in relation to their official acts

Meaning you can prosecute a legislator through evidence like wiretapping a conversation, but you cannot use evidence such as how the legislator voted or what they said during an official hearing.

+It does not matter if the speech on the H/S floor relates to pending legislative business

Question 36

What does the comity clause do?

Answer 36

The comity clause forbids serious discrimination against out-of-state individuals, absent substantial justification. In particular, nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities, such as commercial activities.

• States cannot require that you live or reside in the state to work in the state. However, public employment can require residency requirements
• applies to individuals, not corporations
• serious discrimination typically involves employment; things like hunting licenses or national park access do not qualify

Question 37

When may a state regulate commerce in the absence of federal regulation? (the dormant commerce clause)

Answer 37

[RUD (As Paul Rud’s normal aging is dormant)
State regulation of commerce is valid so long as:
-it does not Regulate extraterritorial activity
-the regulation does not Unduly burden interstate commerce; and
-there is no Discrimination against out-of-state interests;

Question 38

What are the three exceptions to the general rule forbidding discrimination against out-of-state interests

Answer 38

• state as market participant (buyer/seller)
• subsidies to its citizens
• federal approval authorizing or consents to state regulation of commerce (even if discriminatory)

Question 39

Non-discriminatory state regulation of commerce are usually upheld. When is it not upheld

Answer 39

Non-discriminatory state regulation of commerce is only struck down when it creates an undue burden relative to the benefits of the regulation
Ex: forcing all trucks to stop to remove snow that has a minimal benefit to safety
Ex: Requiring all buses in the state to have seatbelts

Question 40

No regulation of wholly extraterritorial activity.

Answer 40

Ex: Connecticut tried to legislate that beer sold in Connecticut could
not be sold at a price different from the price of beer sold in other states.

Question 41

What is the rule on state taxation of interstate commerce?

Answer 41

discriminatory taxation will be struck down unless Congress consents

non-discriminatory taxation will be upheld unless it is unduly burdensome

Question 42

When is non-discriminatory state taxation of interstate commerce valid? [complete auto requirements]

Answer 42

[SNAP]

1) there is a Substantial Nexus between the taxing state and the property or activity to be taxed; and
2) there must be a fair APportionment of tax liability
3) the tax is fairly related to the benefits or services provided by the taxing state

Question 43

What is the rule for state taxation of commodities (goods that move from state to state)?

Answer 43

Pay the full tax to every state where goods are stopped for a business purpose on tax day. No taxes are due where they are merely passing through

Question 44

What is the rule for state taxation of instrumentalities (transportation equipment that moves commodities)?

Answer 44

There is a fair apportionment of tax liability among states with a substantial nexus to the instrumentality because each state in which an instrumentality is used can tax the value of that instrumentality

Question 45

What is the general rule on preemption?

Answer 45

federal law preempts inconsistent state law. However, state law is NOT preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility.

Ex: Federal law provides automobile emissions must be at least 95%
pure. California adopts a more stringent requirement requiring CA emissions be
98% pure. Is this state law preempted? No. There is no conflict—you can
comply with both of those standards

Question 46

If an interstate compact affects federal rights, Congress must approve

Answer 46

o

Question 47

What does the Full Faith and Credit Clause do?

Answer 47

States must give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdiction to render a final judgment on the merits

Question 48

What are the two key questions in Due Process analysis?

Answer 48

1) Is life, liberty, or property being taken?

2) If yes, what process is due?

Question 49

What is something that is not a loss of liberty?

Answer 49

injury to reputation

Question 50

What is required for a deprivation to require notice and hearing.

Answer 50

There must have been an intent to deprive life, liberty, or property. Accidental deprivation does not require notice and hearing

Question 51

In deciding what kind of process is due, what three factors do courts balance?

Answer 51

• the importance of the interest to the individual;
• the value of additional safeguards; and
• the burden/cost of additional process

Question 52

What is required of deprivation hearings that occur after the deprivation?

Answer 52

the hearings must be prompt and fair

Question 53

When does strict scrutiny apply?

Answer 53

when there is a suspect classification of a fundamental right

Question 54

What does strict scrutiny mean?

Answer 54

the law must be necessary for a compelling government interest and the law must use the least restrictive means

[NC limits Roma]

Question 55

What does intermediate scrutiny mean?

Answer 55

the law must be substantially related to an important government interest

[Sam Restricts Isabel]

Question 56

When does intermediate scrutiny apply?

Answer 56

when there is a classification based on LEGITIMACY or GENDER. It has only ever been used to decide cases based on equal protection grounds

Question 57

What does rational basis mean?

Answer 57

the law must rationally relate to a legitimate interest

[RR laws]

Question 58

What is the general rule in distinguishing whether a law violates equal protection or due process?

Answer 58

• If a law denies a fundamental right to only some, it violates equal protection
• If a law denies a fundamental right to everyone, it violates due process

Question 59

What are some “undue burdens” that violate the fundamental right to an abortion?

Answer 59

• parental consent

- spousal consent

Question 60

What are some laws that do not unduly burden abortion rights?

Answer 60

• informed consent
• 24-hour waiting periods
• parental notification

Question 61

What is the answer that is almost never correct

Answer 61

Privileges OR immunities of NATIONAL citizenship under the 14th A is NEVER the correct answer

Question 62

Generally rational basis is rarely an issue. Where is the notable exception?

Answer 62

in the field of sexual orientation. The Supreme Court uses rational basis review (“with teeth”), but it operates similar to strict scrutiny. In Lawrence and Windsor, the Court struck down laws that were premised more on prejudice/animus than reason.

Question 63

What are the suspect classes?

Answer 63

[race-EN]

race, ethnicity, national origin,

Question 64

When must the government waive filing fees?

Answer 64

The government must waive filing fees for indigents when charging the fees would deny a fundamental right

Question 65

What is the contract clause?

Answer 65

it bars STATES from legislative impairment of existing contracts, unless there is an overriding need (e.g., an emergency)

Question 66

What are the three requirements to pass the Lemon Test?

Answer 66

[SEX]

The law must

1) have a Secular purpose
2) have a primarily secular Effect that neither advances nor inhibits religion?
3) avoid eXcessive government entanglement with religion

+Note that in more recent EC cases, the SC has been more willing to set aside the test or modify it

Question 67

What is endorsement?

Answer 67

It is a violation of the Establishment Clause for the government to endorse one religion over another and also to endorse religion over non-religion

Question 68

What is the primary focus in determining if something is a violation of the Establishment Clause?

Answer 68

whether there is a coercive endorsement of religion that overrides individual choice

Question 69

What is the rule on religious objections to laws?

Answer 69

neutral, generally applicable laws must be obeyed despite religious conduct. There is NO right to accommodation.

RFRA allows for accommodation in federal places and some states by law allow for accommodations

Question 70

What is the general rule on regulation of expression?

Answer 70

If the government is trying to suppress a particular message (e.g., flag-burning), then the law will be struck down; if the government is trying to pursue an interest unrelated to the suppression of expression (e.g., public nudity), then the law will be upheld

Question 71

What are the three requirements that must be met when the government regulates time, place, or manner of a public forum?

Answer 71

[CAN like the city requires cans to be used]

1) Content neutral
2) Alternative channels of communication must be left open
3) must Narrowly serve a substantial state interest

+Ex: A city ordinance regulates the manner of performances in a city park (public forum) by requiring all performers to use city-provided sound equipment. Rational basis will not apply. Instead the CAN requirements must be met

Question 72

What is the limit when the government is regulating speech in a nonpublic forum?

Answer 72

The government may regulate speech-related activities in nonpublic forums as long as the regulation is

• viewpoint-neutral and
• reasonably related to a legitimate governmental interest.

Question 73

What is an overbroad law?

Answer 73

An overbroad law is a law that burdens substantially more speech than is necessary to protect a compelling government interest.

Question 74

What is obscenity?

Answer 74

[PP Art]

according to the average person applying community standards it:

• appeals to “prurient interests”
• patently offensive
• artistic value lacking

+typically, the first two prongs use a local standard, not national. The third prong uses a national standard

Question 75

What are fighting words?

Answer 75

words likely to provoke an immediate breach of the peace. Generally, these laws restricting fighting words are impermissibly vague/overbroad

Question 76

When a person is a public official or public figure, when can they recover for defamation?

Answer 76

Upon proof of knowing or reckless falsity

Question 77

When a person is a private plaintiff, when can they recover for defamation?

Answer 77

Upon proof of negligent falsity

Ex: A man suspects his neighbor was emptying her septic tank into the lake because he sees a hose to the lake, but he did not have any proof. The man identified the neighbor by name to a reporter and accused her of ruining the ecosystem by dumping waste. This was likely defamatory because the man acted negligently when he spoke to the reporter

Question 78

What is the general rule on regulating commercial speech?

Answer 78

most regulations of commercial speech are struck down. So long as the advertising is truthful and informational, it must be allowed

Question 79

What is the test for regulating commercial speech?

Answer 79

the law must:

• directly advance a substantial government interest AND
• be narrowly tailored to that interest

Question 80

What is the general rule on the press and media (except broadcasters)?

Answer 80

the press and media have no special privileges. They have the same rights as everyone else

traditionally, because of early limits on the broadcast spectrum, the government had greater regulatory authority over broadcasters than other print media or the Internet.

Question 81

When should a court abstain from hearing a case due to the political question doctrine?

Answer 81

When either

• the issue is committed to another branch of the federal government or
• there is no manageable standards by which the court can resolve the issue

+applies only to the federal government

Question 82

When is a case moot?

Answer 82

further legal proceedings would have no effect because there is no longer a controversy

Question 83

What must be present for there to be state action by a private actor?

Answer 83

1) the private actor performs functions that are traditionally and exclusively public functions (e.g., parks, prisons, elections) OR
2) the state is heavily involved in the activity (more than just providing access to facilities), such as by commanding, encouraging, or being entangled with the activity

+government accreditation, funding, or regulation NO MATTER HOW SUBSTANTIAL does not make the private actor a state actor
+A one time significant grant of money by the state legislature to a sports team for it to stay in the state does not make the team a state actor
+A private utility company providing electricity or water does not qualify as a private actor doing a public function

Question 84

What does the 10th Amendment say?

Answer 84

the powers not delegated to the federal government or prohibited by the Constitution are reserved to the states

Question 85

What must Congress’s taxing and spending power be used for?

Answer 85

for the general welfare. Great deference is given to Congress

+a federal tax on all plane tickets to finance new construction at the 10 most busy airports is permitted even on ticket sales that have nothing to do with the top 10 busiest airports

Question 86

What is the broadest tool of Congress?

Answer 86

Congress may enact laws that shall be necessary and proper to execute any of their enumerated powers. The law need only be rationally related to the implementation of a constitutionally enumerated power

Question 87

When are executive orders invalid?

Answer 87

executive orders are invalid when they inconsistent with a congressional statute or the Constitution

Question 88

What is conflict preemption?

Answer 88

conflict preemption occurs when a state law is inconsistent with a valid federal law covering the same subject matter therefore making the state law invalid

Question 89

What issues are raised when there is a state regulation that discriminates against out-of-towners?

Answer 89

• equal protection

- dormant commerce clause

Question 90

What is the privileges and immunities clause also known as?

Answer 90

the “comity clause”

Question 91

What test is used when there is a comity clause / privileges and immunities clause issue?

Answer 91

rigorous scrutiny

discrimination against noncitizens will only be allowed if the noncitizens are a particular source of evil and the discrimination is substantially related to this evil and there are no less discriminatory alternatives available

+it only applies to people, NOT corporation

Question 92

What are the two clauses of the first amendment that protect freedom of religion?

Answer 92

• the free exercise clause

- the establishment clause

Question 93

What is the approach when a law has a sect preference or no sect preference, but still raises establishment clause concerns?

Answer 93

• if there is a sect preference, then it must pass strict scrutiny (the action must be narrowly tailored to achieve a compelling government interest)
• if there is no sect preference, then it must satisfy the Lemon test

Question 94

What is a public forum?

Answer 94

a place that is generally open to the public

Question 95

What does the equal protection clause do?

Answer 95

the equal protection clause prohibits the GOVERNMENT from treating similarly situated persons differently

+Applies to states, not federal government actors
+applies to discrimination on its face, in its application, and in its impact

Question 96

What are some of the most common EPC fundamental rights that receive strict scrutiny?

Answer 96

[VIP FAP]

• voting/candidacy
• interstate travel
• privacy
• first amendment rights
• access to the courts
• parental rights

Question 97

What does the taking clause say?

Answer 97

private property may not be taken for public use without just compensation

Question 98

What are the two ways that a regulatory action could be a total taking (per se takings)?

Answer 98

1) permanent physical invasion or confiscation of property

2) the restriction denies all economically beneficial use of property

Question 99

When a regulation adversely affecting a person’s property interest constitutes a taking, what factors do courts consider?

Answer 99

[ICE]
This is the PENN CENTRAL test

• the impact on the owner’s reasonable, Investment-backed expectations (i.e., could the owner have anticipated this regulation)
• the Character of the regulation
• the Economic impact on the property owner

Question 100

What does the 15th Amendment do?

Answer 100

the 15th Amendment gives Congress the power to eliminate racial discrimination in voting

Question 101

A federal classification based on citizenship status is upheld unless the classification is…

Answer 101

arbitrary and unreasonable. Rational basis review applies

Question 102

What are the two clauses that are NOT independent sources of power?

Answer 102

The necessary and proper clause

The general welfare clause

Question 103

When may a President pardon someone preemptively?

Answer 103

A President may not pardon a person with respect to future acts, but a President may pardon a person at any time after the offense has been committed—even before charges have been brought.

Question 104

The free exercise clause allows the government to determine whether a religious belief is sincerely held but not whether that belief is reasonable or true.

Answer 104

sincerely held? you must show and tell

reasonable belief? good enough for me

Question 105

What should you do if you ever see an answer choice that mentions “general welfare?”

Answer 105

Remember that “general welfare” is only associated with taxing and spending

Question 106

Generally the ex post facto clause only applies to criminal laws. When will a civil law be deemed to be an ex post facto law?

Answer 106

a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides the law’s nonpunitive purpose.

The factor courts consider the most is whether the law is rationally related to its nonpunitive purpose

Question 107

What due process must be provided to a public employee who can only be fired for cause?

Answer 107

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.

Question 108

What is the claim and standard used when a government action treats similarly situated persons differently?

Answer 108

Equal Protection Clause

Rational basis review: The challenger must show that the law has no rational relation to any legitimate government interest (i.e., the law is arbitrary or invidiously discriminatory)

Question 109

What does the militia clause say?

Answer 109

Congress has the power to authorize the President to call state National Guard units into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions. This power extends to the use of state National Guard units in domestic situations and non-emergency circumstances.

Question 110

When can the government interfere with the First Amendment freedom of association by restricting employment? What are the requirements to do this?

Answer 110

The government can punish (including deny employment) persons who:

• are active members of a subversive organization
• know of the organization’s illegal objectives AND
• specifically intend to further those objectives

[active, know, intend]

Question 111

What does the ministerial exception to the free exercise clause say?

Answer 111

religious organizations are protected from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles

Question 112

When the government imposes content-based restriction on speech in a public forum, what is the standard required?

Answer 112

strict scrutiny

The government must prove that the restriction is necessary and narrowly tailored to achieve a compelling government interest

Rarely is this standard met

Question 113

When a law infringes on an ordinary right, a plaintiff can challenge the law on substantive due process grounds. What is the standard?

Answer 113

rational basis review

The challenger must show that the law is not rationally related to a legitimate government interest

Question 114

When a law infringes on a fundamental right, a plaintiff can challenge the law on substantive due process grounds. What is the standard?

Answer 114

strict scrutiny

The state must show that its law is necessary (i.e., the least restrictive means) to achieve a compelling state interest

Question 115

Congress can never impose taxes on exported goods or services or on services and activities closely related to the export process.

Answer 115

o

Question 116

Generally the government must provide reasonable notice of a seizure of property and a meaningful opportunity to be heard before a neutral decision-maker. However, when may personal property be seized prior to providing notice and a hearing?

Answer 116

• the seizure serves a significant public interest
• the interest would be frustrated by advance notice of the seizure AND
• the seizure is performed by the government

Question 117

When does the First Amendment shield the media from liability for publishing truthful information that was unlawfully obtained by a third-party?

Answer 117

the information involves a matter of public concern AND the publisher neither obtained it unlawfully nor knows who did.

Question 118

What is the rule on state taxation of the federal government?

Answer 118

The federal government is immune from direct taxation by the states.

States may, however, impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). Note that imposing state sales tax on purchases made by the federal government is often unreasonably burdensome and, therefore, unconstitutional.

Question 119

What does the 21st Amendment do?

Answer 119

The Twenty-first Amendment grants states broad authority to regulate alcohol within their borders. This authority includes the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).

[remember 21 for how old you need to be to drink alcohol]

Question 120

When may citizenship be revoked?

Answer 120

only when citizenship was obtained by fraud or in bad faith

Question 121

What does the Article I suspension clause say?

Answer 121

persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control.

If Congress limits the judiciary’s jurisdiction to hear these cases but does not suspend the writ of habeas, the court may hear the petitions.

Question 122

What is an exception to the general rule that the government must compensate for the destruction of private property?

Answer 122

The governmental destruction of private property in response to a public peril does not trigger the right to compensation.

Ex: An infestation of cedar trees can be destroyed with no compensation because of the risk of spreading

Question 123

Under the Tenth Amendment, the federal government cannot impose federal taxes DIRECTLY on states that unduly interfere with their essential functions.

Answer 123

But the Tenth Amendment does not prohibit the federal government from imposing federal taxes on states indirectly through their affiliates—i.e., persons doing business with state governments—so long as the taxes are nondiscriminatory

+Also the federal government allows nondiscriminatory federal taxes that apply to the public and private sectors AND the tax does not interfere with essential state functions. Ex: a federal tax on selling mineral water when the state sells mineral water. This is because this tax is nondiscriminatory and does not interfere with essential functions.

Question 124

What does the elections clause say?

Answer 124

The elections clause in Article I, Section 4 grants Congress the power to regulate congressional elections—not state or local elections.

+This can even take the form of what appears to be commandeering states, but so long as the federal government is doing so in regards to a federal election it is ok

+Ex: Federal law requires states to allow voters to register to vote in federal elections at a state motor vehicle department

Question 125

What is the rule of thumb for a violation of the Fourteenth Amendment equal protection clause “one person, one vote” principle?

Answer 125

A deviation of 10% or less between the populations of state or local districts is minor and there is a rebuttable presumption that it does not violate the equal protection clause absent evidence of discrimination.

+Congressional districts must be nearly perfectly split

Question 126

What are the requirements of an indirect tax (i.e., sales tax) imposed by Congress?

Answer 126

• uniformly applied in every state where the taxed goods are found
• reasonably related to revenue production

Ex: A 5% national tax on all retail sales. Even if applied to newspaper, it is ok.

Question 127

due process does not require a public college or university to provide a meaningful opportunity to be heard when a student is dismissed for academic reasons.

Answer 127

unlike disciplinary actions, decisions based on a student’s academic performance are not adversarial in nature and therefore do not require the tools of judicial decision-making (e.g., presentation of evidence).

Question 128

When a public employee is speaking as a private citizen on a matter of public concern, the government can restrict the speech…

Answer 128

only if its interest in efficient government function outweighs the employee’s right to free speech

Ex: officer made a tasteless parody while in uniform and is fired

Key to this analysis is whether the speech is ordinarily within the employee’s duties

Question 129

When does an assignee have standing to sue to enforce the rights of the assignor when the rights were assigned for ordinary business purposes and in good faith?

Answer 129

• the requirements for standing (injury-in-fact, causation, redressability) are met and
• the assignment was made for ordinary business purposes and in good faith

Question 130

Generally, a state or local action that discriminates against interstate commerce violates the dormant commerce clause. When is this discrimination permitted?

Answer 130

the discrimination furthers a legitimate noneconomic state or local interest and no nondiscriminatory alternative exists

Also when Congress authorizes states to legislate even if the legislation was previously found to impermissibly burden interstate commerce

Question 131

What are the requirements to impose direct federal taxes?

Answer 131

• the tax is apportioned proportionately among the states based on each state’s population AND
• the tax is reasonably related to revenue production

Question 132

Article I necessary and proper clause gives Congress the power to enact laws that are reasonably appropriate to carry out the President’s express powers—e.g., providing funding for conservation activities to carry into effect a treaty.

Answer 132

o

Question 133

When does the First Amendment shield the media from liability for publishing lawfully obtained private facts and other truthful information?

Answer 133

When the publication involves a matter of public concern

Question 134

Since there is no fundamental right to receive government aid for an abortion, states may limit the use of state facilities for abortions to protect the state’s legitimate interest in protecting fetal life.

Answer 134

o

Question 135

On a con law essay, what are the justiciability doctrines that should be considered?
(* means it should be mentioned, even if briefly)

Answer 135

RAAMPS

• Ripeness*
• Abstention
• Advisory opinion
• Mootness*
• Political question
• Standing*

Question 136

What are the requirements when Congress conditions funds on state action?

Answer 136

URUP

1) Unambiguous, express condition
2) the condition must Relate to the spending program
3) cannot induce states to act Unconstitutionally
4) Pressure cannot become unduly coercive

Question 137

What is the approach to dealing with a preemption question?

Answer 137

1) check for express preemption
2) check for implied preemption
- - “occupy the field”
- - S and F law conflicts

Question 138

What is the approach to a takings question?

Answer 138

1) check that this is government action
2) check that this is taking of private property owned by the P
3) check that this taking is for a public use
4) Decide if this is a physical or regulatory taking (total/partial)
5) consider what is just compensation

Question 139

What is procedural due process?

Answer 139

Due process requires that certain procedures must be granted when the government deprives a person of life, liberty, or property

Question 140

What is substantive due process?

Answer 140

whether the government’s deprivation of life, liberty, or property is justified or whether the action impermissibly infringes on an individual’s rights

Question 141

What are the requirements when government is using content-neutral regulation of speech?

Answer 141

The regulation must be substantially related to an important government interest

Question 142

What is the rule regarding the regulation of speech in a non-public government forum?

Answer 142

Speech can be regulated if:

• the regulation is viewpoint-neutral
• reasonably related to a legitimate government interest

Question 143

obscenity is a category of speech unprotected by the First Amendment

Answer 143

o

Question 144

government employees who are under a contract for a specified period of time generally have no liberty or property right to employment beyond the contract term. This applies to at-will government employees as well.

Answer 144

Ex: a probationary teacher on a one year contract does not have an entitlement to an extension

Question 145

An “at-will” government employee cannot be fired for having engaged in speech protected by the First Amendment.

Answer 145

o

Question 146

If a P has money taken and then the money is later given back this would still be an injury and would not be considered moot.

Answer 146

o

Question 147

What are the two freedoms within the Free Exercise Clause?

Answer 147

• freedom to believe (absolutely protected)

- freedom to act (not absolutely protected)

Question 148

What happens if a law intentionally targets religious conduct?

Answer 148

the law will be subject to strict scrutiny. If it is a neutral law of general applicability, rational basis review will apply

Question 149

What was the holding of Employment Division v. Smith?

Answer 149

Under the Free Exercise Clause of the First Amendment, a state may incidentally burden religious acts through a neutral, generally applicable law

Question 150

What is the approach to an establishment clause issue?

Answer 150

1) If a law includes a preference for one religion over another, or religion over nonreligion, then the court will apply the strict scrutiny test.
2) If no preference, the Lemon Test applies

Question 151

What was the holding in SD v. Dole?

Answer 151

Congress could condition a provision of 5% of federal highway funds on the state’s raising its drinking age to 21

+10% is likely ok

Question 152

What are possible claims when there is a government regulation?

Answer 152

• takings clause
• commandeering
• equal protection
• commerce clause

Question 153

When does the SC have original jurisdiction?

Answer 153

[PACS]

• public ministers
• ambassadors
• consuls
• state is a party

+In all other situations, the SC’s appellate jurisdiction requires a lower court decision
+Congress CANNOT alter the SC’s original jurisdiction (e.g., requiring that certain cases be initiated only by filing suit directly in the SC.

Question 154

What are the exceptions to the dormant commerce clause?

Answer 154

[TGiF, Napping Is My Plan]
-traditional government function
-necessary to important state interest
-market participant
\+subsidy
\+congressionally permitted

Question 155

What are content based regulations that are NOT subject to strict scrutiny?

Answer 155

[Fighting CODS]

• fighting words/threats of violence
• commercial speech
• obscenities
• defamation
• subversive speech

Question 156

Once the fetus reaches viability, the state may regulate, and even prohibit, abortion, as long as there is an exception to preserve the health or life of the mother.

Answer 156

o

Question 157

What is the rule regarding Congress’s postal power?

Answer 157

Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment).

Question 158

What is the rule on Congress’s ability to subpoena witnesses?

Answer 158

A subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt. The witness is entitled to certain rights, including procedural due process (e.g., presence of counsel) and the privilege against self-incrimination.

Question 159

What is an ad valorem tax?

Answer 159

a tax based on the value of property (real or personal)

Question 160

What are the types of preemption?

Answer 160

• express

- implied

Question 161

What is an ex post facto law?

Answer 161

a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed

-applies if the punishment is retroactively increased, the defenses are deprived, or the prosecution’s burden decreased

Question 162

What does the import-export clause do?

Answer 162

it prohibits the states from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods. There is an exception if Congress consents or the tax is absolutely necessary for the state to execute its inspection laws

+There is also a major exception to this rule

Question 163

What is the enabling clause?

Answer 163

The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones.

Question 164

What immunity do prosecutors have?

Answer 164

prosecutors have absolute immunity from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction

Question 165

What is the property clause?

Answer 165

It gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” There is no express limit on Congress’s power to dispose of property owned by the United States.

+this includes the power to regulate an protect the wildlife

Question 166

A law prohibits robocalls but allows robocalls to collect a debt owed by the government. Is this constitional?

Answer 166

No this is unconstitutional. This is a content-based speech restriction because it allows speech on one subject but not others. Therefore, this is struck down for not passing strict scrutiny.

Question 167

What is the rule on the government’s ability to force a group to accept members?

Answer 167

the government CANNOT force a group to accept members who would significantly burden its views unless that interference is necessary to achieve a compelling government interest

Question 168

Generally, the court will apply the strict scrutiny test and strike down state laws that discriminate against noncitizens such as laws prohibiting noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs. What is the major exception?

Answer 168

State laws that restrict a noncitizen’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest.

Laws prohibiting noncitizens from voting, serving on a jury, or being hired as police officers, probation officers, or public-school teachers have been upheld as preventing noncitizens from having a direct effect on the functioning of the government.

+A law that grants tuition assistance to US citizens and resident noncitizens, but not resident noncitizens, would have to pass the EP clause. Strict scrutiny will be applied and it will likely be struck down

Question 169

What are some legislative powers that Congress does not need bicameralism and/or presentment?

Answer 169

• deciding disputes regarding the ratification of amendments
• deciding a person’s eligibility to serve as a senator
• a resolution (even calling for the President to pursue a foreign policy wish) because it is just a nonbinding recommendation

Question 170

Generally, states engaged in interstate agreements do not need the consent of Congress. When do they need the consent of Congress?

Answer 170

• Compacts that affect a power delegated to the federal government OR
• Compacts that alter the political balance within the federal system

Ex: It is ok for states to independently enter into an agreement to curb pollution emissions because each state could have done this alone, it is ok.

Question 171

What is the major exception to the import-export clause?

Answer 171

While generally, states cannot tax imported goods, states can tax imported goods if:

• the federal government is still able to speak with one voice in foreign commerce
• there is interstate harmony because the tax satisfies the Complete Auto requirements, AND
• the tax does not divert import revenue from the federal government

Ex: A state can require corporations located in the state to pay an annual property tax based on the value of their inventory that is stored there. This is ok because there is a substantial nexus, fair apportionment, it is nondiscriminatory, is fairly related to the benefits provided by the state, and does not divert revenue from the federal government

Question 172

Generally, the 11th A forbids federal courts from hearing private suits for damages against the states. When is this permitted?

Answer 172

Congress can authorize such suits when it is clearly acting to enforce the Civil War Amendments (13, 14, 15)

Question 173

What is the burden of proof required of the state when terminating parental rights?

Answer 173

clear and convincing evidence which is more than mere preponderance of the evidence

Question 174

What does the 14th Amendment (section 5 enabling clause) do?

Answer 174

authorizes Congress to enact legislation enforcing the amendment’s equal protection and due process clauses.

+This amendment applies only to STATE action.
+Congress cannot expand rights or create new ones as this is left to the SC

Question 175

What is an exaction?

Answer 175

An exaction is when a local government exacts a promise from a developer in exchange for issuing the necessary construction permit.

Ex: A city requires a hotel developer to build a concrete foundation to prevent landslides. This would add 5% to the total cost of the planned development. Does not constitute a taking

Question 176

When does an exaction NOT violate the takings clause?

Answer 176

The government shows:

• the imposed condition substantially advances a legitimate government interest AND
• there is a rough proportionality so that the proposed development’s impact on the community is roughly proportional to the burden of the condition

Question 177

What scrutiny is applied for laws that limit campaign contributions?

What about limits on political campaign expenditures by unions, individuals, or corporations?

Answer 177

campaign contribution limits require intermediate scrutiny. This means the law must be “closely drawn” to achieve an important interest

limits on political campaign expenditures are subject to strict scrutiny. Generally, there is no limit but the spending must be disclosed

Question 178

What is required when the government regulates commercial speech (e.g., a ban on commercial news racks for aesthetic purposes)?

Answer 178

Government regulations of commercial speech must:

• directly advance a substantial government interest AND
• not be more extensive than necessary to serve that interest (ie., a reasonable fit).

Ex: A city ordinance banning all sidewalk machines from dispensing solely commercial advertisements would be unconstitutional because there is no reasonable fit between the interest and the means chosen because only a small portion of the machines were removed

+Ex: A law that prohibits attorneys from mailing solicitations to car-accident victims for 30 days after their accident is constitutional

Question 179

What is the constitutionality of a federal law that requires cable television providers to carry local tv stations to support local tv?

Answer 179

Constitutional because the federal law preserves the economic viability without being substantially more restrictive than necessary

Question 180

What is the rule for state legislator immunity?

Answer 180

state legislators have absolute immunity from federal civil liability for official legislative actions.

state legislators DO NOT have absolute immunity from federal CRIMINAL liability

Question 181

What does it mean when an employee “works at the pleasure of the official?”

Answer 181

the employee does not have a property interest in the job so they can be fired, regardless of whether there is cause

Question 182

What is the president’s authority to remove federal executive officers?

Answer 182

the President has absolute authority to remove federal executive officers. Congress may impose restriction on this power only for officers who belong to a multimember body that is balanced along partisan lines and exercises no executive power OR officers who lack policymaking or administrative authority

Ex: the President has the absolute power to remove the director of the CFPB because the director exercises significant executive power and significant administrative authority by issuing regulatory rules

Question 183

Most of the Bill of Rights apply to the states. What are the exceptions?

Answer 183

• 3rd A prohibition against government quartering of soldiers
• 5th A requirement of a grand jury indictment to charge a person with a capital offense
• 7th A guarantee of a jury trial in civil cases

Question 184

What is a bill of attainder?

Answer 184

a legislative act that declares a person or group of persons guilty of some crime and punishes them with civil or criminal punishments, without a trial

Ex: barring particular individuals from government employment

Question 185

The operations of the federal government are completely immune from state regulation unless Congress consents.

Answer 185

Ex: A federally owned and operated building needs to use a smokestack to heat the building a few times a year. This is permitted in the appropriation statute. Can the state prosecute the operators of the building? No, because the operations of the federal government are immune from state regulation in the absence of federal consent

Question 186

In a takings clause case where a taking is found, what is just compensation?

Answer 186

the P can recover the fair market value of the property at the time of the taking. It is measured according to the loss of the owner, not the benefit to the government.

Ex: property that is worth 4 mil, but 200k with the regulation. If a partial taking is found, then the P can recover the 200k

Question 187

A state bar requires that a person disclose if they have been part of a subversive organization. Is this uncn’l?

Answer 187

Yes, because inquiring into an applicant’s association with a subversive organization to deny bar admission violates the 1st Amendment

The 1st A prohibits the government from inquiring into a person’s associations unless that inquiry is necessary to protect a legitimate state interest

Question 188

Generally a law that discriminates (facially or in its impact) against a quasi- or suspect class must survive only rational basis review. When will a heightened standard be used?

Answer 188

A heightened standard will be used when the government engaged in INTENTIONAL discrimination

Ex: A law that bans shorts in school that has a discriminatory effect on girls. Unless it can be shown that the school board’s decision was intentionally discriminatory, the ban will likely survive rational basis review.

Question 189

When does a public employee have a protected property interest in their employment?

Answer 189

A public employee has a protected property interest if any one of the following are true:

• the employee has an employment contract
• the employee can only be fired for cause
• the employee receives assurances of continued employment

Question 190

A city ordinance forbids taxicabs from displaying bumper stickers that favor a particular candidate because the city does not want to create the appearance that these views will be imputed to the city council. Is this cn’l?

Answer 190

No, because this is content-based restriction of political speech and is presumptively invalid. It will only be enforceable if it survives strict scrutiny (necessary and narrowly tailored). But because this interest could be more narrowly tailored (e.g., a disclaimer), it is unc’l.

Question 191

What is a non-self-executing treaty?

Answer 191

A treaty that requires legislation in order to implement its provisions. Unlike a standard treaty, it does NOT have the same force of law as an act of Congress until legislation is passed effectuating the treaty

Question 192

A state SC says that a law violates both the due process provisions of the US and the state constitutions. Can the US SC exercise jurisdiction to review this decision?

Answer 192

No, because the state court’s decision rests on adequate and independent state grounds.

+Remember to ask whether changing the federal interpretation would change the outcome of the case

Question 193

A state court issued a gag order that prohibited the publication of information about a pending murder trial until the jury had been impaneled so that pretrial publicity would not prejudice the criminal D’s right to an impartial jury. Newspapers sought to report about the trial’s pretrial events and argue the order was unc’l. Is this order unc’l?

Answer 193

No, because there are less restrictive means to guarantee the D’s right to an impartial jury

The court could have changed the trial’s venue, postponed the trial, or intensely questioned prospective jurors during voir dire

+Closing all voir dire proceedings in a criminal trial to the public and press is unconstitutional

Question 194

Who has the burden of persuading the court when there is a challenge to a law under strict scrutiny? Under rational basis review?

Answer 194

when a law is challenged and strict scrutiny applies, the government bears the burden of persuasion.

When a law is challenged and rational basis review applies, the challenger bears the burden of persuasion

Question 195

Congress conditioned for state receipt of federal funds that teachers will be paid up to 10% of existing salaries provided that no such supplements are paid to any teacher who instructs in religious subjects. Is this cn’l?

Answer 195

No, because the policing of the restriction would amount to an excessive entanglement with religion

Question 196

A federal court generally may award damages against a federal official only if expressly authorized by statute. But in the absence of authorization, federal common law may imply that damages are recoverable in rare instances involving unconstitutional conduct. What are the few situations where an implied cause of action against a federal official (Bivens suit) exist?

Answer 196

• 4th A claim for an unlawful search and seizure
• 5th A DP claim for sex-based employment discrimination
• 8th A cruel and unusual punishment claim for failure to provide medical treatment

Question 197

Generally, a federal court must dismiss a case when the P’s claim becomes moot. What is the exception?

Answer 197

when a P whose claim is moot is the named P in a certified class action AND the claims of the unnamed Ps in that class action are still viable

Ex: A prisoner filed a class action against the parole commission in federal court. After the court certified the class action, the prisoner was released from prison. The commission cannot move to dismiss the case due to mootness because of this exception

Question 198

Congress passed a statute that expressly authorizes suits for damages in federal courts against state governments that violate federal copyright laws. A photographer sued in federal court a state because of copyright violation. Can the state dismiss the suit?

Answer 198

Yes. The 11th A prohibits the action for damages against the state in federal court. Congress can ONLY get around this immunity when it clearly acts to enforce a Civil War Amendment OR the bankruptcy act.

Question 199

What is the key test-tip to remember when dealing with privileges and immunities or privileges or immunities?

Answer 199

remember that they both do not apply to corporations

Question 200

What is serious discrimination that would violate the privileges and immunities clause / comity clause?

Answer 200

serious discrimination typically involves employment; things like hunting licenses or national park access do not qualify

+But if the hunting license is needed for someone’s livelihood, it is likely to be viewed as serious discrimination

Question 201

Can the following be admitted?

The P is prepared to testify that he heard the D’s executive assistant for copyright matters say that the D had obtained an advance copy of the plans from the P’s office manager

Answer 201

Yes, this is admissible because it is a statement of an employee of a party-opponent

Question 202

What scrutiny is applied for zoning ordinances for adult-entertainment businesses?

Answer 202

intermediate scrutiny

This means the law must be “closely drawn” to achieve an important interest

Question 203

What are required of Congressional investigations?

Answer 203

Congress can conduct investigations through committee hearings provided that:

• the investigation is authorized by a chamber of Congress
• the investigation is related to a valid legislative purpose AND
• the questions posed to the witness are pertinent to the investigation’s purpose

Question 204

Congress passed a program that provides federal loans to family farmers who had been unable to obtain loans from private lenders. A farmer applied for a loan and was denied. The farmer sued the agency claiming this denial of her application without a hearing violated the due process clause of the 5th A. Is the farmer right?

Answer 204

No, the statute gives the farmer no legitimate claim of entitlement to receive a loan. For this type of claim to be valid, she needs to show that she is legally entitled to the benefit and not merely in need or anticipating it

Question 205

A federal statute imposes an excise tax on each new computer sold in the US. Funds are used to purchase licenses for computer software that will be available to all citizens. Is the statute constitutional?

Answer 205

yes, because it is a reasonable exercise of Congress’s powers to tax and spend

Question 206

Under a state law, a drug company that makes a false factual claim about a prescription drug is strictly liable in tort to any user of the drug. A company advertised that a drug was safe for children, based on the consensus at the time, but a child dies and it is found to be dangerous for children. The drug company has moved to dismiss on 1st A grounds. Should the court grant the motion?

Answer 206

No, because false or misleading commercial speech is not constitutionally protected. The moment the statement was found to be false, the advertisement lost any 1st A protections

Question 207

A nondiscriminatory law governing the acquisition of a state corporation does not unduly burden interstate commerce and therefore does not violate the Dormant Commerce Clause

Answer 207

o

Question 208

What must the P do when subject to a criminal subpoena that seeks the president’s private papers?

Answer 208

executive privilege and absolute immunity are NOT absolute. The president cannot use these devises to shield himself from complying with a criminal subpoena that seeks the President’s private papers

Question 209

a loyalty oath to uphold and defend the federal and state constitutions is constitutional

Answer 209

o

Question 210

A federal statute provides health care benefits to US citizens, but excludes noncitizens. A group of noncitizens claims the statute violates the EP clause of the 5th A due process clause. Is the statute constitutional?

Answer 210

Yes, because the statute is rationally related to a legitimate government interest

Question 211

A criminal D is testifying at a preliminary-question hearing. What can he be cross-examined on?

Answer 211

he can be cross-examined about issues related to the admissibility of the contested evidence and the D’s credibility. Questions about other issues in the case are not allowed.

Question 212

What is the main exception to the one person one vote principle?

Answer 212

when officials are elected to serve on a special-purpose government unit (e.g., water-storage district) that primarily impacts a specific class of persons (e..g., landowners). Therefore, voting eligibility can be limited to members of the affected class and their votes need not carry equal weight

+But zoning board elections would not be included in this exception because their actions do not principally affect a specific class of persons

Question 213

When can a state tax foreign commerce?

Answer 213

1) comply with Complete Auto requirements
2) Comply with federal uniformity requirements
- -no inevitable risk of international multiple taxation
- -federal government able to speak with one voice

Question 214

States have the power to appoint presidential electors and place conditions on such appointments. What are the permitted conditions?

Answer 214

• requiring electors to swear an oath that they will cast their vote according to the wishes of the voters
• electors may be fined
• electors may be removed

Question 215

A city requires flyers be posted in spanish and english. What test should be applied?

Answer 215

time place and manner (intermediate scrutiny)

this is likely not content-based regulation

Question 216

Although governmental regulation of the content of speech is severely constrained, governmental regulation of the time, place, and manner of speech may be valid and the validity of the regulation varies depending on the forum in which the speech takes place.

Answer 216

o

Question 217

The Supreme Court has sorted government property that is open for speech into two categories:

Answer 217

• traditional and designated public forums

- nonpublic forums (a lower standard applies)

Question 218

What are traditional public forums?

Answer 218

places that have been historically associated with expressions such as sidewalks, streets, and parks

Question 219

What is a designated public forum?

Answer 219

places that have not historically been associated with speech-related activities, but which government has opened for such use, such as civic auditoriums, publicly owned theaters, or after hours school classrooms.

Question 220

What is a non-public forum?

Answer 220

essentially all public property that is not a traditional or designated public forum

Exs: government offices, jails, airport terminals, polling places

Question 221

What is a key difference between non-public forum and public forum restrictions?

Answer 221

public forum restrictions must be content- AND viewpoint neutral

non-public forums just need to be view-point neutral

Question 222

When is a statute vague?

Answer 222

A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

This is based on a fear of “chilling” speech and due process principles

Question 223

What is the rule on expressive conduct (symbolic speech)?

Answer 223

government regulation of expressive conduct is upheld if:

• the regulation is within the government’s power
• it furthers an important government interest
• government interest is not seeking to suppress ideas
• the burden on speech is no greater than necessary

Question 224

What are the common speech topics to discuss?

Answer 224

[Regulation, Forum, Vogue, FP]

Regulation (content or TPM)
Forum (type)
Vagueness
Overbreadth 
Government speech
Unfettered discretion
Expressive
Freedom not to speak
Prior-restraint

Question 225

What is the rule on government speech?

Answer 225

When the government itself speaks, it is not constrained by the Free Speech Clause of the First Amendment. Therefore, government speech (public service announcements, agricultural marketing campaigns, etc.) need not be viewpoint-neutral. Though it must still follow the establishment clause

Question 226

What are some examples of impermissible regulation of expressive speech?

Answer 226

• banning students from wearing black armbands to oppose Vietnam war
• ban on flag burning
• ban on leafletting because of the risk of littering

Question 227

What is the rule on prior-restraint?

Answer 227

Prior-restraints on speech are generally presumed to be unconstitutional with very limited exceptions

Question 228

What is the concern when a government official issues permits based on personal preference?

Answer 228

“unfettered discretion”

A law that permits a government official to restrict speech must provide standards as to how to apply the law to avoid the risk of unfettered discretion. If no standards are given, the law is void on its face.

Question 229

What happens if there is an EPC violation based on religious discrimination?

Answer 229

this is a non-suspect classification so rational basis review applies

Question 230

If C required bike owners to register and found that most stolen bikes are kept by the thieves in the same city in which the bike was stolen. Is the act c’l?

Answer 230

No, because bike theft is noneconomic activity that has no substantial effect on interstate commerce. The cg’l finding is given great weight

Question 231

What is a use tax?

Answer 231

A tax on goods purchased out of state but used within the taxing state. Even though it looks like it violates the dormant commerce clause, it is valid.

Question 232

What is the difference between certiorari and direct appeal?

Answer 232

certiorari is how most cases are brought to the SC and it is discretionary. Direct appeal is extremely rare because it occurs when a party is appealing a decision on injunction by three-judge federal district court panel, and they are mandatory.

Question 233

A newspaper published an editorial in which an editor asserted that a candidate for high political office was a user of illegal drugs. The accusation was untrue. The editor acted unreasonably in not investigating the accusation before publishing it, however, the editor honestly believed that the accusation was true. Is the candidate entitled in a defamation suit?

Answer 233

No, because the editor honestly believed the accusation was true. Public figures or public officials can only recover for defamation if he/she proves that the D made a false statement with actual malice (i.e., with knowledge or reckless disregard of the statement’s falsity)

Question 234

A state passes a law that requires toys showing space exploration be scientifically accurate. In application, it bans out of state toys depicting mars, but allows the in-state toy showing mars to be sold. Is this law cn’l?

Answer 234

No, because it imposes an undue burden on interstate commerce. A state regulation that discriminates against interstate commerce (on its face, application, or in its effect) is invalid unless it furthers a legitimate noneconomic state interest and no reasonable alternative exists

Question 235

A state law provides funding for surgeries, but not to persons who have resided in the state for less than one year. Is this law valid?

Answer 235

No, because the law burdens the fundamental right to travel by discouraging persons from moving into the state. Since strict scrutiny applies, the law will likely be unconstitutional

Question 236

A federal statute established a national lottery and created a new federal agency to administer it. In order to sell lottery tickets directly to the public, the agency established outlets throughout the country, Some of these outlets are within a state that levies aa general tax on all in-state gaming operations. The state seeks to tax the agency on the sales of lottery tickets from its outlets within the state. Must the agency pay the state gross receipts tax?

Answer 236

No, because a state may not impose a tax directly on the federal government or any of its agencies or instrumentalities. Even though the tax is generally applicable, states cannot directly tax federal agencies without Congress’s explicit consent

Question 237

What is the exception regarding alienage review?

Answer 237

Federal laws: rational basis review applies

State laws: strict scrutiny applies

Question 238

An ordinance prohibiting posting signs on public property is a constitutional time, place, manner speech restriction

Answer 238

o

Question 239

What is a mnemonic to remember levels of scrutiny?

Answer 239

SC-IS-RR
strict - compelling
intermediate - substantial
rational -rationally

Question 240

A state cannot prosecute a federal contractor for failing to comply with a state licensing requirement.

Answer 240

o