Con Law

Question 1

Standing

Answer 1

Fed cts will not hear a case unless the party bringing the suit has standing. To have standing, the πmust prove an actual or imminent injury, the injury is caused by the conduct complained of, and it is likely that the injury will be redressed by a favorable decision. The injury mb specific and more than theoretical. However, the injury need not be economic.

Question 2

Ripeness

Answer 2

A case wont be heard if theres not yet a live controversy or immediate threat of harm (future wrong).

Question 3

Mootness

Answer 3

A case will not be heard if a live controversy existed at the time of the complaint was filed but has since been eliminated.

Except: (1) Controversy is capable of repetition, yet evading review; or (2) voluntary cessation of the activity by ∆.

Question 4

Organizational Standing

Answer 4

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

(1) an injury to ind members that would give the ind a right to sue on their own behalf;
(2) the injury is related to the org’s purpose; and
(3) neither the nature of the claim nor the relief requested reqs participation of the ind members in the lawsuit.

Question 5

Third Party Standing

Answer 5

Third party standing reqs the π to prove he has ind standing, and a special relationship between the π and the 3rd party, or that its difficult for the 3rd party to assert his own rights.

Question 6

State Action

Answer 6

For an action to vio the const, there mb gov involvement w/ the challenged action. The action of a private actor can qualify as state action if the private actor performs functions that are traditionally and exclusively public functions or the state is heavily involved in the activity.

Question 7

Powers of Congress

Answer 7

C has power to (1) reg commerce; (2) taxing and spending for the gen welfare of the US; (3) war powers to declare war and raise and support armed forces; (4) est laws re naturalization and bankruptcy; (5) enforce 13th, 14th, 15th amendments; and (6) N&P powers to execute any of enumerated powers.

Question 8

Powers of President

Answer 8

P has power to execute laws made by C; supervise the exec branch; make treaties w/ foreign nations subject to 2/3 approval by Senate; speak for US in foreign policy and nego exec agts; appoint ambassadors; appoint top-level fed officers subject to Senate approval; issue pardons for fed offenses; veto a bill passed by C; and refuse to disclose confidential info re to perf of his duties.

Question 9

Supremacy Clause

Answer 9

The Supremacy Clause makes fed law the supreme law of the land. Under the Supremacy Clause, state laws can be preempted by fed law expressly or impliedly.

Question 10

Preemption

Answer 10

There are 3 ways a fed law may impliedly preempt a state law:

(1) conflict preemption - where state law conflicts w/ the reqs of a valid fed law
(2) conflict w/ purpose - where state law interferes w/ the objective of a valid fed law
(3) field preemption - where C has evidenced an intent to occupy the entire filed over which it has power

Question 11

Dormant Commerce Clause

Answer 11

DCC restricts the states and local govs from reg activity that affects IC if the reg is (1) discriminatory, or (2) unduly burdensome.

Laws designed to protect local bus against interstate competition, laws reqing local operations, and laws limiting access to state products have been held to disc against IC.

Question 12

Exceptions to the DCC

Answer 12

Exceptions: (1) When the state is not acting as a regulator but rather owns or operates a bus, a market participant, it may favor local interests over nonlocal interests. (2) Congressional consent to the regulation.

Question 13

Free Exercise Clause

Answer 13

Free exercise bars any law that prohibits or seriously burdens the free exercise of religion, unless there’s a compelling gov interest. Except laws of gen applicability. Est clause prohibits laws respecting est of religion. Gov can’t endorse or favor specific religions

Question 14

1st Amendment

Answer 14

1st Amendment protects an ind’s right to free speech and is applicable to the states through the 14th Am. Speech prohibitions can be content based or content neutral, and the rules vary depending on this distinction.

Question 15

Content-based Speech Regulations

Answer 15

Content-based speech regs are those that forbid the communicative impact of the expression. Strict scrutiny applies to content-based restrictions, meaning the reg mb nec to achieve a compelling gov interest.

Question 16

Content-neutral Speech

Answer 16

Content-neutral speech regs are those where the regulation is aimed at something other than the communicative impact of the expression.

Standard:

(1) serve an important gov interest,
(2) are narrowly tailored to serve that interest,
(3) and leave open alternate channels of communication.

Question 17

Time, Place, Manner Regulations

Answer 17

TPM regs seek to reg speech based on the external factors of the TPM in which the speech may be communicated. The rules differ depending on the type of forum in which the speech or conduct occurs. All mb viewpoint neutral.

Question 18

Public/Designated Public Forums

Answer 18

Public forums are forums historically open for speech activities, including sidewalks and public parks.
Designated public forums are forums not historically open for speech activities but are opened up to the public at large for a specific purpose.
Standard: mb content neutral and viewpoint neutral, serve a important gov interest, be narrowly tailored to serve that interest, and leave open alt channels of comm.

Question 19

Limited/Nonpublic Forum

Answer 19

Limited public forums are forums that are opened for limited use by certain groups or discussion of certain subjects.
Nonpublic forums are forums that are closed to the public.

Standard: mb viewpoint neutral and reasonably related to a legit gov purpose.

Question 20

Vague and Overbroad

Answer 20

A speech reg is unconst vague if it is so unclearly defined that a RP would have to guess at its meaning. DP clause reqs laws to give ppl reas notice of what is prohibited.

A speech reg is unconst overbroad if it bans both protected speech and unprotected speech. A reg, licensing scheme, or permit reg is unconst if it leaves unfettered discretion to the decisionmaker by not setting forth narrow and specific grounds for the denying a permit, or where the permit mechanism is not closely tailored to the reg’s objective.

Question 21

Substantive Due Process

Answer 21

SDP limits the gov’s ability to reg certain areas of human life, such as the subst interest in life, liberty, or prop. Rights are either fund or nonfund, and diff rules apply to each.
Fund rights are rights relating to marriage, living w/ one’s fam, child bearing, child rearing, domestic travel, voting, and other 1st rights.
Standard of Review: SS applies to fund rights under SDP. The gov action mb nec to achieve a compelling gov objective.
Nonfund rights everything else but typically social and econ regs. Rational basis applies to nonfund rights. The gov action need only be rationally related to achieve a legit gov objective.

Question 22

Procedural Due Process

Answer 22

PDP reqs gov to use fair process before intentionally depriving a person of LLP. Liberty interest include physical liberty as well as intangible liberties, such as the right to drive, raise a fam, etc. Prop interest includes real prop, personal prop, public ed, gov empl, gov licenses, and gov benefits that one is already rec’ing.

Question 23

Equal Protection Clause

Answer 23

EPC of the 14th prohibits the gov from treating similarly situated persons differently. A vio is on its face exists when the gov treats ppl differently in a statute or reg. A vio as applied occurs when the gov treats ppl diff through the administration of a statute.

Fundamental rights under EPC are subject to SS.

Question 24

Suspect Class Standard of Review - Equal Protection

Answer 24

Sus classifications include only those based on race, nat origin, and state alienage, and are subject to SS. SS reqs the gov to prove that the classification is nec to achieve a compelling gov interest.

Question 25

Quasi-suspect class standard of review - Equal Protection

Answer 25

Q-sus classifications include only those based on gender & illegitimacy and are subject to IS. IS reqs the gov to prove that the classification is subst related to achieve an important gov interest.

Question 26

Nonsuspect classification standard of review - Equal Protection

Answer 26

Nonsus classifications include everything else, including those based on nonsus and nonfund rights, such as econ and wealth and are subject to RB review.

Standard: classification mb rationally related to a legit gov interest.

Question 27

Privileges and Immunities of 14th Amendment

Answer 27

Prohibits states from denying their citizens the rights of national citizenship.

Question 28

Privileges and Immunities of Art IV

Answer 28

States may not deprive citizens of other states of privileges and immunities it accords its own citizens.

Does not apply to corporations.

Question 29

Congress’ Commerce Power

Answer 29

C can regulate the channels of IC such as roads, air traffic routes; instrumentalities (planes, shipping containers, and trucks) of IC and persons and things in IC; or regulate activities that have a subst effect on IC.

Question 30

10th Amendment

Answer 30

10th Am states that all powers not granted to the US are reserved for the states.

Fed gov cannot commandeer the states by imposing targeted or coercive duties on state legs or officials, but can impose regulatory statutes of gen applicable laws that apply to both private and state actors.

Question 31

Spending Power Conditions

Answer 31

C can induce state action by placing conditions on the grant of money. Grants wont vio 10th Am if conditions are:

(1) expressly stated,
(2) relate to the purpose of the program, and
(3) are not unduly coercive.

Question 32

Delegation

Answer 32

Legs power may be delegated to the exec or judicial branch as long as intelligible standards are set and the power is not uniquely confined to C.

Question 33

Privacy Rights

Answer 33

Right to marry; procreate; keep family together; intimate sexual conduct; refuse medical treatment.

Question 34

Takings Clause

Answer 34

The Takings clause of the 5th Am provides that private property may not be taken for public use w/o just comp.

Public use is liberally construed and satisfied if the state’s use of the prop is rationally related to a conceivable public purpose and can include public benefit rather than actual public usage.

Just comp is measured by the market value of the property at the time of the taking.

Question 35

Total Takings

Answer 35

Regulatory actions are total takings if there is a:

(1) permanent physical invasion or confiscation of property; or
(2) a use restriction that denies all economically beneficial use of property.

Question 36

Regulatory Taking

Answer 36

Regs that decrease the econ value of the prop by prohibiting most beneficial use are not considered takings if theres still an econ viable use for the property. To make a determination, ct will employ a balancing test and consider:

(1) the character of the invasion;
(2) the econ impact on the claimant; and
(3) the extent of interference w/ the investment backed expectation of the owner.

Question 37

Obscene Speech

Answer 37

Speech that describes or depicts sexual conduct that, taken as a whole, by the average person:

(1) appeals to prurient interest in sex (community standard);
(2) is patently offensive (community standard); and
(3) lacks serious literary, artistic, political, or scientific value (under national RP standard).

Question 38

Unprotected Speech

Answer 38

Obscenity, Fraudulent Misrepresentation, Defamation, Advocacy of Imminent Lawless Action, Fighting Words.

Standard: Gov must reg in content neutral way.

Question 39

Commercial Speech

Answer 39

Gov may restrict commercial speech only if the reg:

(1) it serves a subst gov interest,
(2) it directly advances that interest, and
(3) it is narrowly tailored to serve that interest.

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

Question 40

DCC Standard of Review

Answer 40

(1) Laws that discriminate against IC vio DCC unless necessary to achieve an important state interest.
(2) Laws that dont disc against IC, vio the DCC if it unduly burdens IC. Law upheld if its rationally related to a legit gov purpose and burden imposed on IC mb outweighed by the benefits to the state.

Question 41

Lemon Test Establishment Clause

Answer 41

The main test used to determine the the Est Clause is vio by gov action is the Lemon Test. Gov action will be found to vio the 1st Am unless:

(1) the action has a secular purpose;
(2) the primary effect of the action neither advances nor inhibits religion; and
(3) the action doesn’t produce excessive gov entanglement between gov and religion.

Question 42

Whe Belief is Religious

Answer 42

A belief will be treated as religious if it occupies a place in the believer’s life parallel to that occupied by orthodox religious beliefs. Free exercise clause prohibits cts from determining the validity of a religious belief, and the SC has never found an asserted religious belief to be nonreligious.

Ct can assess the sincerity of the π’s beliefs.