Con Law

Question 1

What is the standard of review for content-based speech?

Answer 1

strict scrutiny: the law must be necessary to further a compelling government interest

Question 2

What is the standard of review for symbolic speech?

Answer 2

The law will be upheld if (1) it furthers an important interest (2) the interest is unrelated to the suppression of expression and (3) the burden on expression is no greater than necessary

Question 3

What is the standard of review for regulation of content-neutral speech (time, place, manner regulation)? What forum does it apply to?

Answer 3

Law will be upheld if (1) the law is content-neutral on its face (2) narrowly serves a significant (substantial) state interest (3) there are alternative channels of communication

Applies to public forums – streets, parks, public sidewalks around public buildings. Does not apply to airports

Question 4

What is a nonpublic forum and what are the rules regarding the regulation of speech there?

Answer 4

Nonpublic forum – government offices, jails, power plants, military bases, etc

Viewpoint discrimination is invalid but any reasonable regulation of speech will be upheld

Question 5

Commercial Speech

Answer 5

law regulating commercial speech will be upheld if it’s (1) narrowly tailored (2) to directly advance (3) a substantial state interest. No protection for commercial speech that is false or misleading

narrowly tailored doesn’t have to be least restrictive means

Question 6

What elements must speech have for it to be considered obscene (and therefore allowing the gov’t to regulate it)?

Answer 6

Defined by “S” Rule

• Sexy: must be erotic, appeal to the prurient interest (gore and violence aren’t obscene)
• Society sick: must be patently offensive to the average person in society. The society may be the nation as a whole, a particular state, or major metro areas
• Standards: must be defined by the proper standards for determining what is obscene, not vague and/or overbroad
• Serious value: the material must lack serious value. If material has serious value (artistic, scientific, education, or political), it cannot be held legally obscene
  
  • Determination is made by the court and must be based on national standards

Question 7

Strict Scrutiny

Answer 7

The strict scrutiny test is applied if a fundamental right or a suspect classification (race, ethnicity, national origin) is involved. To satisfy strict scrutiny, the law must be narrowly tailored (least restrictive means) to achieve a compelling gov’t interest. The burden is on the gov’t to prove that the law is necessary.

Question 8

Intermediate Scrutiny

Answer 8

Intermediate Scrutiny is used when a quasi-suspect classification (gender or legitimacy) is involved. To satisfy intermediate scrutiny, the law must be substantially related to an important government interest.

In gender cases, there must be an “exceedingly persuasive justification” for the classification, which brings the standard closer to strict scrutiny. The burden is on the gov’t to prove that the law in question passes intermediate scrutiny.

Question 9

Rational Basis Review

Answer 9

Rational basis review applies to laws re: age, wealth, weight, economic reasons, etc. Law must be rationally related to a legitimate state interest. The burden is on the challenger to prove law is arbitrary or irrational

Question 10

Interstate Commerce

Answer 10

Congress has the power to regulate (i) the channels (highways, waterways, airways, etc.) and (ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right.

Question 11

State Action

Answer 11

the Constitution generally protects against wrongful conduct by the government, not private parties. In other words, state action is a necessary prerequisite to triggering constitutional protections.

Question 12

Delegation of Legislative Powers

Answer 12

Delegation of some of Congress’s legislative power to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate. Almost any legislative delegation passes the “intelligible standards” requirement, so even broadly phrased standards have been upheld

Question 13

Commandeering

Answer 13

Congress cannot “commandeer” states by commanding them to enact specific legislation or administer a federal regulatory program. However, through the use of the taxing and spending powers, Congress may encourage state action that it cannot directly compel.

Question 14

Who has the power to veto laws? Can they veto parts of a law and keep other parts? Can a veto be overridden?

Answer 14

President has the power to veto law within 10 days of its passing. No line item veto (cannot veto certain parts of law, must veto entire law). A presidential veto can be overridden by ⅔ majority vote by Congress.

Question 15

Pardon Power

Answer 15

• President can grant pardons for federal crimes EXCEPT impeachment
• Cannot grant pardons for state crimes
• Can even pardon a person who hasn’t been convicted yet

Question 16

Appointment and Removal Power

Answer 16

• President can appoint all US officers with the advice and consent of Senate
• President can remove any executive appointee without cause and without Senate approval, EXCEPT in cases of federal judges (federal judges may only be removed by impeachment).

-Note: Congress can still remove inferior officers, just can’t remove presidential appointees

Question 17

Contracts Clause

Answer 17

limits the ability of states to enact laws that retroactively impair contract rights. The only exception is if there is an overriding need (something akin to an emergency)

Question 18

Free Exercise of Religion

Answer 18

Prohibits the gov’t from imposing burdens on someone on the basis of religious belief.

To establish a violation of the Free Exercise Clause, the challenger must show gov’t’s intent to target religion. When intent is established, it triggers strict scrutiny review

Question 19

What does SCOTUS’s original jx cover?

Answer 19

“APS”

• Ambassadors
• Public ministers and consuls
• States (controversies between states)

Question 20

Can Congress decide what type of cases SCOTUS hears?

Answer 20

Congress has the general power to decide what type of cases SCOTUS may hear, just as long as it doesn’t expand the Court’s jx.

Question 21

Article IV Privileges and Immunities Clause (Comity Clause)

Answer 21

Forbids states from discriminating against out-of-state citizens concerning essential activities and basic rights unless there is asubstantial justification and no less restrictive means

Note: clause does NOT protect out-of-state corporations

Question 22

Can states require state residency for private employment?

Answer 22

No, but they can for public employment

Question 23

Do classifications based on alienage violate EP?

Answer 23

No, classifications based on alienage are constitutional so long as they are reasonable and not arbitrary

Question 24

If Congress uses its spending power to provide federal funding to a state and wants to impose limitations/conditions on the funding, what guidelines must Congress follow?

Answer 24

limitations/conditions must be:

* (1) merely **an incentive** and not a compulsion

* (2) **clearly stated** and

* (3) **relate** to the funding’s **pupose**

Question 25

Supremacy Clause

Answer 25

federal law is supreme and prevails over state law. States cannot pass laws that conflict with federal law or interfere with a federal objective

Question 26

Federal immunity from state law

Answer 26

a state cannot regulate or tax the federal government, but states can tax indirectly (ex: taking the income of federal employees)

Question 27

What is the Dormant Commerce Clause? Does it protect out-of-state businesses or out-of-state businesses? Are there exceptions to not discriminating against out-of state interests?

Answer 27

1. In the absence of federal regulation, state regulation of commerce is valid so long as

• (1) there is no discrimination against out-of-state interests [unless there is substantial state interest and no other non-discriminatory means available]
• (2) the regulation doesn’t unduly burden interstate commerce, and
• (3) the regulation doesn’t apply to wholly extraterritorial activity

2. protects out-of-state businesses AND out-of-state individuals
3. Yes: State as Market Participant, Subsidies, and Federal Approval

Question 28

In relation to the Dormant Commerce Clause, what are the exceptions to not discriminating against out-of-state interests?

Answer 28

• State as Market Participant: when a state acts as a business rather than a regulator, it can choose to deal w/ only in-state persons
• Subsidies: a state can always choose to subsidize only its own citizens (ex: welfare benefits or in-state college tuition)
• Federal Approval: if Congress authorizes/consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests

Question 29

When it comes to racial gerrymandering, can race be considered a main or predominant factor?

Answer 29

No. Race can be a factor but it can’t be the main or predominant one. Other factors that can be considered are compactness and observing local, political subdivisions

Question 30

Ex post facto laws

Answer 30

states are prohibted from passing ex post facto laws, which are laws that increase punishment for crimes after the crime has already been committed.