Con Law

Question 1

Equal protection applies when the government is doing what?

Answer 1

treating a group of people differently

Question 2

3 levels of scrutiny

Answer 2

Strict scrutiny, intermediate scrutiny, and rational basis

Question 3

Strict scrutiny applies when? What’s the burden?

Answer 3

People are being treated differently based on a suspect class (race, alienage, and/or National origin) or a fundamental right is being taken away

Government has the Burden to prove law is necessary to achieve a a compelling interest

Question 4

Intermediate scrutiny applies when? What’s the burden?

Answer 4

People are being treated differently based on their gender or illegitimacy

Government has the burden to prove law is substantially related to important interest

Question 5

Rational basis applies when? What is the burden?

Answer 5

Everyone else falls under rational basis

Plaintiff has the burden to show the law is not rationally related to a legitimate interest

Question 6

Substantive due process applies when the government is doing what?

Answer 6

Taking away or regulating one of citizen’s rights

Statute deprives ALL people.

Question 7

If government is taking away a fundamental right, what test do we apply? What is being violated?

Answer 7

Strict scrutiny

Substantive due process

Question 8

If statute is depriving a non-fundamental right, what test? What is being violated?

Answer 8

Rational basis

Substantive due process

Question 9

The fundamental Rights

Answer 9

Independent/individual rights: right to vote, free speech, and interstate travel
Privacy rights: C.A.M.P.E.R (contraception, abortion (not anymore), marriage, procreation, (private) education, right to raise your family)

Question 10

Procedural due process is when the government is doing what?

Answer 10

The government is taking away an INDIVIDUAL’S property interest/right. If property right is taken away, individual has a right to Notice and to a hearing.

Question 11

What are “property” rights under procedural due process?

Answer 11

Employment, benefits (Public), licenses
Key: individual must actually have the job, license, or benefit or have earned it.

Question 12

Government must remain ___ when it comes to religion

Answer 12

Neutral!!! Look out for intent!

Question 13

Speech is a ____ right. Government cannot ___ it, but they can ___ it.

Answer 13

Speech is a fundamental right. The government cannot ban it, but they can regulate it

Question 14

2 ways to regulate speech:

Answer 14

① Content based: Banning/shutting down the entire message (Strict scrutiny)
② Content neutral: government is regulating the time, place, and manner of the message with reasonable alternative options

Question 15

Powers of the executive branch

Answer 15

VEECAP

Veto: only prez can veto! Congress overrides
Executive order: applies to domestic affairs (gets treated like law)
Executive agreement: applies to foreign affairs
Commander in Chief: can deploy troops, but cannot declare war
Appointment: prez can appoint anyone with executive authority (solely executive = only prez can appoint)
Pardon: only federal crimes, not state or local (its unappealable)

Question 16

Powers of the legislative branch

Answer 16

Commerce: plenary power (can do almost anything)
Taxing: so long as its for the general welfare
Spending: so long as its for the general welfare
Coin money: congress has total jurisdiction over currency
Federal lands: “property clause” congress has jurisdiction over all federal land
War: congress has power to declare war

Question 17

Judicial branch powers:

Answer 17

SCOTUS:
- Original jurisdiction to hear all cases affecting ambassadors, public ministers, consuls, and where a state is a party
- Congress cannot enlarge nor restrict original jurisdiction
Congress MAY regulate and limit SCOTUS appellate jurisdiction

Lower Federal courts:
- Congress has jurisdiction over them, can do what they want

Question 18

Supremacy clause

Answer 18

When federal law conflicts with State law, federal law wins.

Question 19

10th Amendment

Answer 19

States Rights: State law can be stricter than federal law (police power), but it cannot be weaker than federal law.

Question 20

Commandeer rule

Answer 20

Congress cannot command or require the state to do anything.

Question 21

Privileges and immunities clause of Article 4

Answer 21

When one State discriminates against residents of another state. CANNOT DO THIS

Question 22

Standing

Answer 22

Plaintiff must show:
- injury in fact
- causation
- redressability

Question 23

In order to bring an equal protection or due process claim, the Defendant must be a ____

Answer 23

Defendant must be a state actor (aka: government is doing the violation)

Exception: 13th Amendment, No state actor is required if there is racial discrimination.

Question 24

Mootness

Answer 24

Case is over, issues have already been litigated

Question 25

Ripeness

Answer 25

There is no “case or controversy”; nothing has happened yet.

Question 26

Free exercise clause

Answer 26

Government cannot punish someone on the basis of their religious belief

Question 27

Establishment Clause

Answer 27

Prohibits the government from sponsoring a religion

Question 28

Whether a person holds religious beliefs depends on the

Answer 28

SINCERITY of their beliefs

Question 29

discrimination on the basis of religion is subject to

Answer 29

strict scrutiny

Question 30

a law is discriminatory on the basis of religion if it is either:

Answer 30

1) not neutral on its face OR
2) facially neutral, but by design, it targets religion

Question 31

Public forum

Answer 31

governemnt owned property

Question 32

designated public forum

Answer 32

public property not historically used for speech but now is as a matter of public policy (town hall, civic center)

Question 33

limited public forum

Answer 33

government property not historically for speech but open for SPECIFIC speech activity (like a school gym)

Question 34

non public forum

Answer 34

government property that is not held open for specific speech activities

Question 35

If speech is being regulated in a public forum or designated public forum, it is valid if it is:

Answer 35

• content neutral
• narrowly tailored to serve important gov interest
• alternative channels of communications are left open

Question 36

If speech is being regulated in a limited public forum or non public forum, it is valid if it is:

Answer 36

• viewpoint neutral
• reasonably related to legitimate government interest

Question 37

unprotected public employee speech

Answer 37

• if at work & a private matter: employer can punish if speech was disruptive
• if at work and related to official duties (even if public concern): employer can punish but employee cannot be discharged unless the actions interfere with the functions of the government

Question 38

protected public employee speech

Answer 38

• if its a matter of public concern but not made pursuant to employees duties –> court applies balancing test (value of the speech v. government interest)
• if its a matter of private concern outside of work –> generally protected

Question 39

unprotected speech

Answer 39

1. incitement
2. fighting words
3. obscenity
4. defamatory speech
5. some commercial speech

Question 40

incitement

Answer 40

speech intended to produce 1) imminent lawless action and 2) likely to produce such action

Question 41

fighting words

Answer 41

speech of personally abusive words likely to incite immediate physical retaliation in the average person

Question 42

true threats

Answer 42

words intended to convey to someone a serious threat of bodily harm

Question 43

statutes that attempt to punish fighting words are usually….

Answer 43

overbroad and vague

Question 44

the “taking” clause

Answer 44

private property can only be taken away if:
1) for public use
2) the government pays just compensation

(applicable to states via 14A; fed government via 5A)

Question 45

a taking will be found if there is a

Answer 45

1) confiscation of a persons property; or
2) permanent or regular physical occupation of a person’s property by the government

Question 46

exceptions to “taking” (when the gov takes property, but its not considered a taking)

Answer 46

1) Development exception (gov can show essential nexus b/w condition and the proposed development + adverse impact is proportional to loss caused to the property owner)
2) Emergency exception (public emergency, like war)

Question 47

Contract clause - impairment of a contract

Answer 47

Only applies to the states!!

If a law substantially impairs an existing private K –> must survive SS

If a law impairs a K where a state is a party –> same test, but heightened scrutiny

Question 48

Privileges and immunities clause of14th amendment

Answer 48

states cannot deny their citizens rights of national citizenship

Question 49

commandeer rule

Answer 49

congress cannot command the states to enact state laws or enforce federal laws

Question 50

dormant commerce clause

Answer 50

states cannot discriminate against out of state businesses

Question 51

bill of attainder

Answer 51

state law imposes criminal penalties, to named individuals, with no right to a fair trial (cannot do this)

Question 52

What must a Plaintiff show when they claim their property rights have been deprived without due process of law?

Answer 52

Plaintiff must demonstrate that they have a legitimate claim or “entitlement” to the benefit under state or federal law

P MUST SHOW THAT THE LAW CREATED A CONSTITUTIONALLY PROTECTED PROPERTY INTEREST (benefit, license, employment)