CON LAW

Question 1

THREE BIG POWERS OF CONGRESS

Answer 1

TAXING, SPENDING, AND COMMERCE.

Question 2

What can Congress regulate via the Commerce Power?

Answer 2

Channels, Instrumentalities.

N.B. INTRAstate activities can be regulated if, IN THE AGGREGATE, they have a SUBSTANTIAL EFFECT on interstate commerce.

Question 3

What must Congress prove to enact a tax?

Answer 3

Must be RATIONALLY RELATED to RAISING REVENUE

N.B. “Taxing Clause” is the right answer whenever Congress imposes a tax.

Question 4

Congress’s Spending Power?

Answer 4

Power to SPEND for the general welfare.

N.B. PROMOTING the general welfare is NOT an enumerated power. But Congress can essentially bribe states. Think of the, federally funded, highway funding program if states set the drinking age at 21.

Question 5

War and Defense Powers?

Answer 5

1. Declare War & maintain Army and Navy
2. Military discipline for U.S. military personnel
3. Military trial for enemies
4. No trial for U.S. civilians

Question 6

XIII Amendment?

Answer 6

Congress can legislate against racial discrimination, whether PUBLIC or PRIVATE.

N.B. This is a BROAD power of Congress.

Question 7

What does the XIV Amendment allow Congress to do?

Answer 7

To adopt remedies reasonably designed to enforce individual rights, as defined by the courts.

To be “properly remedial” TEST: Legislation must have “congruence” and “proportionality.” i.e., a reasonable fit between the remedial law enacted and the constitutional right defined by the Supreme Court.

N.B. Congress can’t redefine constitutional rights via legislation. That’s the job of the judiciary.

Question 8

RFRA example. What was the problem there?

Answer 8

Congress is free to accommodate religious beliefs in the exercise of its undoubted federal powers.

HOWEVER, Congress has NO POWER to force such policy on states and localities.

Question 9

Powers of the President?

Answer 9

1. Power to enforce the law (not make it or break it).
2. President is at the apex of his power when supported by statute.

EXCLUSIVE POWERS:
1. Pardon Power
2. Veto Power
3. Appointment and Removal of Executive Officers

Question 10

(a) When can the Veto be executed?
(b) Can it be overridden?

Answer 10

(a) President has 10 days to veto legislation.
(b) Can be overridden with a 2/3 majority vote of each House.

Question 11

Who can be impeached?

Answer 11

Any Executive Officer (e.g., President, Vice President, cabinet officers, federal judges).

Question 12

Impeachment process?

Answer 12

1. An accusation by the House of Representatives requiring a MAJORITY
   vote.
2. Once impeached, person is tried in the Senate.
3. Conviction requires a 2/3 vote of the Senate.
4. Conviction successful: (a) removal from office and (b) disqualification
   from holding future office. No other penalties.

Question 13

How can Congress avoid the Executive’s veto power?

Answer 13

IT CANNOT.

N.B. Only way would be to pass legislation changing the law. But
Executive would have veto power over that legislation.

Question 14

When can Congress delegate its powers?

Answer 14

ALMOST ALL delegations of legislative powers are upheld.

N.B. Major question doctrine: decisions of vast political/economic
significance.

Question 15

Define Presidential Immunity.

Answer 15

1. Absolute immunity for liability from official acts. (Very BROAD).
2. No immunity for PRIOR ACTS to Office.
3. Executive privilege concerning communications w/ advisors.

N.B. Privilege can be outweighed by a specifically demonstrated
need in a CRIMINAL case. (Nixon/Watergate case).

Question 16

Extent of Judicial immunity?

Answer 16

All judicial acts. The correct course of action is appeal.

N.B. Still liable for non-judicial acts (e.g., employment discrimination).

Question 17

How can states tax the federal government?

Answer 17

Indirect taxation (e.g., taxing income of federal employees).

N.B. Direct taxation of states is never allowed (i.e., immunity).
N.B. Fed. Gov. can DIRECTLY tax states.

Question 18

What does Art. IV of the Comity Clause do?

Answer 18

Forbids serious discrimination against out-of-state individuals.

N.B. Does not protect out-of-state corporations.
“Serious discrimination” typically involves EMPLOYMENT.

Question 19

(Dormant Commerce Clause) In the absence of federal regulation…

Answer 19

State regulation of commerce is valid if:

1. There is NO DISCRIMINATION against out-of-state individuals;
2. The regulation does NOT UNDULY BURDEN interstate commerce; AND
3. The regulation does not apply to WHOLLY EXTRATERRITORIAL
   ACTIVITY.

Question 20

EXCEPTIONS as to discrimination against out-of-state interests.

Answer 20

1. State as Market Participant.
2. Subsidies (i.e., States can choose to only subsidize their citizens).
3. Federal Approval* (i.e., can discriminate against out-of-state citizens).

*Dormant CC applies only in the ABSENCE of Fed. Reg.

COMMONLY TESTED ON MBE!

Question 21

(T/F) States CAN regulate interstate commerce.

Answer 21

TRUE.

So long as it’s not OUTRAGEOUSLY costly relative to the benefits of the regulation (Balancing Test) + no out-of-state discrimination aspects to the law.

Question 22

(T/F) States can regulate wholly extraterritorial activity.

Answer 22

FALSE.

A state may not regulate conduct occurring wholly beyond its borders.

e.g., NH attempting to regulate beer costs outside its state.

Question 23

When is a state’s non-discriminatory taxation valid?

Answer 23

1. Substantial nexus between the regulation & property/activity taxed.
2. There must be FAIR APPORTIONMENT among states.

Question 24

Ad Valorem (value-based) Property Taxes, gimme definitions, rules etc.

Answer 24

1. COMMODITIES: The “thing” that moves, from state to state.
2. INSTRUMENTALITIES: The thing that MOVES the commodities.

(i) Commodities are taxed where they are stopped for a BUSINESS
PURPOSE. Not where they are merely passing through.

(ii) Instrumentalities taxed based on substantial nexus to states (i.e., fair
apportionment).

(ii)(a) Whichever state the instrumentality passes through can tax it
(value-based).

Question 25

XIII Amendment.

Answer 25

Outlaws slavery and involuntary servitude.

Applied directly to private parties and individuals.

Question 26

Strict Scrutiny.

Answer 26

Can the government show that the law is NECESSARY for a COMPELLING government interest?

Implicitly, is this the LEAST RESTRICTIVE means?

N.B. There must be a FUNDAMENTAL RIGHT or SUSPECT
CLASSIFICATION.

Question 27

Intermediate Scrutiny.

Answer 27

Is the law SUBSTANTIALLY RELATED to an IMPORTANT government interest?

N.B. There must be LEGITIMACY or GENDER.

Question 28

Rational Basis.

Answer 28

Is the law RATIONALLY RELATED to a government interest?

Very easy to satisfy.

Question 29

List the Fundamental Rights.

Answer 29

1. Life;
2. Travel (interstate, NOT abroad);
3. Voting and Ballot Access;
4. Privacy*;
5. II Amendment (“Historic” test).

*Marriage, Contraception, Sexual intimacy, Abortion, Parental rights, Family relations, Obscene material, and Refusal of medical treatment.

Question 30

If a law denies a FUNDAMENTAL RIGHT to EVERYONE …

Answer 30

It violates Due Process.

Question 31

If a law denies a FUNDAMENTAL RIGHT to ONLY SOME …

Answer 31

It violates the Equal Protection Clause.

Question 32

The two Due Process Clauses:

Answer 32

(1) DPC of the V Amendment applies to the federal government*.
(2) DPC of the XIV Amendment applies to states and localities.

*EP concepts applied to fed. gov. via the DPC of the V Amendment.

Question 33

Suspect Classifications (EPC).

Answer 33

Race, Ethnicity, National Origin. They trigger STRICT SCRUTINY.

N.B. Must show a discriminatory PURPOSE. Not enough to show IMPACT.

Question 34

State discrimination as to Citizenship status.

Answer 34

1. Ok for government functions.
2. Not ok for regulating PRIVATE employment or government BENEFITS.

Question 35

Federal government discrimination as to Citizenship status.

Answer 35

Generally ok, unless arbitrary AND unreasonable.

Question 36

Quasi-Suspect Classifications (EPC).

Answer 36

Gender and Legitimacy.

Use INTERMEDIATE SCRUTINY. Generally, this results in invalidity.

Question 37

Non-Suspect Classifications (EPC).

Answer 37

Age* and Health**.

*Employment discrimination based on AGE is BARRED BY STATUTE.

**Gov. has to waive indigent fees when charging would violate a F.R.
e.g., divorce (marriage), appeal (criminal conviction & parental rights)

~Sexual orientation, not a F.R. (1964 Civil Rights Act regulates it).

Question 38

Fundamental Rights (EPC).

Answer 38

1. Right to travel.
2. Right to vote - one person, one vote.
3. Gerrymandering - race cannot be the predominant factor.

Question 39

Takings.

Answer 39

Private property shall not be taken for public use w/o just compensation.

Question 40

Zoning.

Answer 40

Ok so long as it ADVANCES LEGITIMATE government interests.

Question 41

Regulatory Taking.

Answer 41

A ZONING regulation that leaves NO ECONOMICALLY viable use of the property.

Question 42

Prohibited Legislation.

Answer 42

1. Bill of Attainder - law punishment w/o trial.
2. Ex Post Facto Laws - Retroactive (or increased retroactive) punishment.
3. Contract Clause - States can’t impair existing contracts*.

• Unless it’s an emergency.

Question 43

Establishment Clause.

Answer 43

The government cannot endorse:
(1) One religion over another; or
(2) Religion over non-religion*.

Exception: “In God we trust.”

Question 44

Establishment Clause test.

Answer 44

Consideration of historical practices and understanding.

Question 45

Religious Belief & Religious Conduct.

Answer 45

Religious Belief - PROTECTED ABSOLUTELY

Religious Conduct - PROTECTED FULLY

Question 46

Ministerial Exception.

Answer 46

Federal government cannot regulate employment relations between a religious institution and its members.

N.B. This is a, BROAD, I Amendment protection.

Question 47

Content-Based Regulations of Speech.

Answer 47

Strict Scrutiny applies (i.e., usually struck down).

Question 48

Expressive Conduct (a.k.a. Symbolic Speech).

Answer 48

1. Furthers an IMPORTANT interest.
2. That interest is UNRELATED to the suppression of expression; and
3. BURDEN on expression no greater than necessary.

e.g., desecrating the U.S. flag is always allowed as expressive speech.

BUT, e.g., regulating public nudity is OK, because public order must be kept.

Question 49

Content-Neutral Regulation of Speech.

Answer 49

Government can regulate:
1. Time;
2. Place; and
3. Manner.

Such regulation must:
1. Be content-neutral on its face AND application;
2. Leave other CHANNELS open;
3. Narrowly serve a SIGNIFICANT state interest.

Nonpublic forums are not public forums = less protections.

Question 50

Commercial Speech (i.e., advertising and similarly economically oriented expression).

Answer 50

Commercial speech is entitled to an intermediate level of First Amendment protection.

Restrictions on commercial speech are reviewed under a four-part test:

1. Commercial speech must concern lawful activity and be neither false
   nor misleading;
2. The asserted governmental interest must be substantial;
3. The regulation must directly advance the asserted interest; and
4. The regulation must be narrowly tailored to serve that interest; this
   means there must be a “reasonable fit” between the government’s
   ends and the means chosen to accomplish those ends.