Con Law

Question 1

First Amendment

Answer 1

guarantees freedom of speech with limitations.

The government may regulate speech based on CONTENT if the regulation is NECESSARY to achieve a COMPELLING state interest.

The government may regulate the CONDUCT of speech through time, place, and manner restrictions. The reasonableness of TPM restrictions is determined by the forum: Public, Designated Public, Limited Public, and Nonpublic.

Question 2

Public/Designated Public Forum

Answer 2

PF and DPF are government properties.

PFs are historically open for speech activities.
DPFs are NOT historically open for speech activities but have been opened by the government for speech for some or all times.

Regulations in PFs/DPFs must:

1) Be CONTENT NEUTRAL (otherwise kick up to SS)
* viewpoint and subject matter neutral

2) NARROWLY TAILORED
3) to achieve an IMPORTANT government interest; and
4) leaves open ALTERNATIVE channels of communication

Question 3

Limited PF/NPF

Answer 3

Limited public forums and Nonpublic forums are government properties not historically open for speech activities.

LPFs are opened for a particular purpose.

NPF are not held open for public speech in any way.

TPM regulations in these forums must be VIEWPOINT neutral and REASONABLY RELATED to a LEGITIMATE government PURPOSE.

Question 4

Commercial Speech

Answer 4

1) Prohibited if either:
a) whether the speech concerns a LAWFUL activity
b) Whether the speech is misleading or fraudulent.
2) Otherwise regulation must:
a) serve a SUBSTANTIAL government INTEREST
b) directly ADVANCE the INTEREST; and

c) is NARROWLY TAILORED to that INTEREST * a regulation is narrowly tailored if there is a reasonable fit between the legislation's end and the means chosen.

Question 5

First Amendment Associational Rights

Answer 5

The first amendment encompasses a right to ASSOCIATE with or not associate with, person’s of one’s choosing.

There is no clear test for determining whether the freedom of association has been violated. Sometime SS is applied and other times a lower standard.

Question 6

Standing

Answer 6

To have standing, a litigant must have a concrete stake in the outcome of the controversy.

Question 7

The Commerce Clause

Answer 7

1) The Commerce Clause of the US constitution grants. Congress the power to regulate interstate commerce.
2) This includes the power to regulate the

a) CHANNELS of interstate commerce (roads, rails)
b) instrumentalities (trucks, airplanes); and
c) commercial activités that have a SUBTANTIAL ECONOMIC IMPACT on interstate commerce.

• congress may delegate this power to federal agencies
• states may regulate local aspects of interstate commerce as long as not preempted by federal law

Question 8

negative implication of the Commerce Clause/ Dormant Commerce Clause - Discrimnatory

Answer 8

If a state law discriminates against out of state competition it is invalid unless

the law furthers an important, non economic state interest and there are no reasonable nondiscriminatory alternatives

The state is a market participant; or

The government action involved is the performance of a traditional government function

Question 9

Dormant Commerce Clause - Non discriminatory

Answer 9

1) Non discriminatory state laws are upheld unless they are found to UNDULY BURDEN interstate commerce.
2) Determination is on a case by case basis.
3) To determine whether there is an undue burden, courts consider:
a) the balance of a LEGITIMATE state INTEREST against the burden placed on intrastate commerce
b) whether there are LESS RESTRICTIVE means to accomplish the state’s GOALS
c) Whether the state law CONFLICTS with other state’s laws

Question 10

Supremacy Clause

Answer 10

Makes Federal law the law of the land and preempts state law expressly or impliedly.

Question 11

Implied Preemption

Answer 11

Conflict Preemption - state law conflicts with requirements of a valid federal law

Objective Preemption - state law INTERFERES with the OBJECTIVE of a valid state law

Field Preemption - Congress has EVIDENCED AN INTENT to occupy the ENTIRE FIELD over where it has power

Question 12

Standing

Answer 12

a litigant must have a concrete stake in the outcome of the controversy. A concrete stake is established if the plaintiff

1) has an injury in fact
* must be specific and more than hypothetical, economic injury suffices

2) Causation*

3) Redressability
* the injury can be remedied by a decision in the litigant’s favor

Question 13

Organizational standing

Answer 13

An Organization will also have standing to challenge government action that causes INJURY TO ITS MEMBERS is:

1) an injury to individual members that would give the individuals a right to sue on their own behalf
2) Injury is related to the organizations purpose
3) neither the nature of the claim nor the relief sought requires participating of the invidisual members in the suit

Question 14

Takings Clause

Answer 14

1) Under the 5th amendment applicable to states through the Due Process clause of the 14th amendment
2) The government shall not TAKE PRIVATE property for PUBLIC USE without just compensation
3) limits the power to take private property through eminent domain which is reserved to the states through the 10th amendment

Question 15

Takings - Physical Appropriation

Answer 15

A taking occurs when the government PHYSICALLY APPROPRIATES a person’s property.

*taking found where law required apartment building owners to allow private companies to install cable television lines

Question 16

Takings - Regulatory

Answer 16

A person may bring an INVERSE CONDEMNATION ACTION seeking to recover just compensation for the property taken when

1) REGULATION affect the VALUE or
2) USE of a person’s property.
3) IF the owner has been deprived of ALL economic value of the property, it is equivalent to a physical appropriation and thus a taking requiring the government to pay just compensation
* the Supreme Court considers the ECONOMIC IMPACT of the regulation and whether the regulation SUBSTANTIALLY INTERFERES with DISTINCT, INVESTMENT-BACKED EXPECTATIONS of the claimant

Question 17

Partial Taking

Answer 17

if a regulation

a) merely decreases the value of the property
b) and there is still economically viable use of the property
c) then it does not constitute a taking

*the Supreme Court considers the ECONOMIC IMPACT of the regulation and whether the regulation SUBSTANTIALLY INTERFERES with DISTINCT, INVESTMENT-BACKED EXPECTATIONS of the claimant

Question 18

Delegation of Powers by Congress

Answer 18

1) Congress has broad powers to delegate its power
2) except powers that are uniquely confined to congress
3) Delegation is upheld if there are INTELLIGIBLE STANDARDS for the delegate to follow

Question 19

10 amendment

Answer 19

THe 10th amendment provides

1) that powers not delegated to the US by to constitution
2) nor prohibited to the states
3) are reserved to the states
* this restriction of power is often cited as a restriction on the power of Congress to regulate the states
* it has also been held to prevent Congress from commandeering state officials or specially regulating the states in some circumstances

Question 20

The Due Process Clause

Answer 20

1) Requires government action to be reasonable and not act arbitrarily
2) Protects corporations and natural persons
3) If the government actions impacts right to TRAVEL, PRIVACY, VOTING, or FIRST AMENDMENT / FUNDAMENTAL RIGHTS it must pass SS (NECESSARY to achieve a COMPELLING government interest)
3) In all other cases, rational basis (challenger proves that the governmental action is not reasonably related to a legitimate government interest)

Question 21

Spending Clause

Answer 21

the Spending Clause of the US Constitution gives Congress

1) the power to spend oft the general welfare.
2) Congress is generally free to conditions its grants
3) conditions imposed are not limited only to those that are otherwise within Congress’s enumerated powers
4) a condition is valid if
a) it is clearly stated
b) relates to the purpose of the spending program
c) is not unduly coercive

Question 22

Free Exercise Clause - Whether a belief is religious

Answer 22

1) The government shall not interfere with the free exercise of religion.
2) A belief does not need to be TRADITIONAL to be protected under the Free Exercise Clause
3) a belief is treated as religious if it occupies a placed in the believer’s. life parallel to that occupied by an orthodox religious belief
4) The FEC prohibits the courts from determining the validity of a religious belief

Question 23

Free Exercise Clause - Sincerity of belief

Answer 23

1) The government shall not interfere with the free exercise of religion
2) a court can assess the sincerity of the person asserting the belief

Question 24

Free Exercise Clause - Targeting religious conduct

Answer 24

The free exercise clause does not prevent the government from adopting RELIGIOUSLY NEUTRAL laws, rules, policies, at INCIDENTIALLY interfere with a person’s religious beliefs.

the FEC does not require the government to EXCEPT from such religiously NEUTRAL action conduct motivated by religious belief.

Question 25

Strict Scrutiny

Answer 25

When governmental action interferes with a fundamental right, the action can be upheld if the government can prove that the action is necessary to achieve a compelling interest.

Question 26

Establishment Clause

Answer 26

1) The establishment clause prohibits the government from respecting an establishment of religion.
2) The main test to determine whether the Establishment Clause is violated by government action is the lemon tes.
3) Under the Lemon test, government act violates the 1st amendment unless:
a) the action has a SECULAR purpose
b) the primary effect of the action NEITHER ADVANCES NOR INHIBITS religion
c) the action does not produce EXCESSIVE government ENTAGLEMENTS between government and religion

Question 27

Equal Protection

Answer 27

1) The Equal Protection Clause prohibits the government from unreasonably treating SIMILARLY SITUATED PERSONS in a DISSIMILAR MANNER.
2) Protects corporations and natural persons
3) whether discrimination is reasonable depends on the basis for the discrimination and the interest involved
4) If the government intentionally discriminates on the basis of RACE or NATIONAL origin, a fundamental right is involved and SS applies, therefore the discriminator action will be struck down unless the government proves that the discrimination is necessary to achieve a compelling government intent

4) for quasi suspect classifications (gender, legitimacy, alienage) then the discriminatory action must survive intermediate scrutiny and the government needs to prove that the discrimination is SUBSTANTIALLY related to a LEGITIMATE government interest
* gender requires exceedingly persuasive justification
* interest must be genuine and not for the purpose of litigation
* in most cases INTENTIONALY discrimination based on gender is held as invalid

5) discrimination on any other basis gets rational basis review and the challenged from must that the action is not REASONABLY RELATED to LEGITIMATE government interest

Question 28

Privileges and Immunities of Article 5

Answer 28

1) The PIC of Article 5 provides that the citizens of each state shall be entitled to the privileges and immunities of citizens in several states.
2) Does not apply to corporations
3) prohibits a state from discriminating against citizens of other states when the discrimination involves COMMERCIAL ACTIVITY or CIVIL LIBERTIES

Question 29

Vagueness

Answer 29

1) the Due Process clause requires laws to give people reasonable notice of what is prohibited.
2) This principle is applied strictly when first amendment activity is involved in order to prevent chilling first amendment rights.

Question 30

Procedural Due Process

Answer 30

Under the 5th amendment applicable to the states through the due process clause of the 14th amendment

1) Prohibits the government from denying a person, life liberty or property without due process.
2) Whether a life, liberty, or property interest is involved is governed by state law.
3) Applies when individualized decisions are made
4) At a minimum, due process requires the
a) OPPORTUNITY to PRESENT OBJECTIONS to the proposed government action to a

b) FAIR and NEUTRAL decision maker. * Decision maker need not be a judge.