Con Law

Question 1

Is the President’s pardon power plenary

Answer 1

The President’s pardon power is indeed plenary and may not be abridged by Congress. Congress may not place conditions on the President’s pardon power.

Question 2

Preemption

Answer 2

The Court has made it clear that for preemption, either the federal statute must expressly preempt state
measures, or it must be clear that the state law is impliedly preempted by the federal measure, either because (1) the state law poses a conflict that makes compliance with both measures impossible, (2) it prevents achievement of the federal objective, or (3) the federal law “occupies the field” being regulated.

Question 3

Racial discrimination: 13th Amendment enabling clause

Answer 3

Congress has addressed the problem of racial discrimination primarily under the commerce power, but the
Thirteenth Amendment does contain an enabling clause that would authorize Congress to punish local actors because it is not limited to governmental action like the Fifth Amendment, or state action like the 14th Amendment.

Question 4

Nondiscriminatory state tax levied against property of federal government

Answer 4

A state tax levied directly against the property or operation of the federal government without the consent of Congress is invalid.

However, nondiscriminatory, indirect taxes on the federal government or its property are permissible if they do not unreasonably burden the federal government.

Question 5

Article IV Privileges and Immunities Clause

Answer 5

The Article IV Privileges and Immunities Clause: States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means.

Tip: This is usually the issue when a state gives a hiring preference to its own citizens and discriminates against out-of-state citizens. Employment is only a fundamental right for purposes of Article IV.

Question 6

Federal laws regarding alienage

Answer 6

Federal laws that discriminate against aliens are NOT subject to strict scrutiny because Congress has broad power to regulate immigration.

Question 7

Intermediate scrutiny

Answer 7

INtermediate scrutiny applies to discrimination based on gender and illegitimacy.

To trigger intermediate scrutiny in equal protection cases, need to look for a discriminatory motive to the challenged action.

Question 8

Political questions: Redrawn electoral districts

Answer 8

Federal courts cannot hear cases involving political questions. The Supreme Court has ruled that a claim that a state has redrawn electoral districts to benefit one political party is a political question and nonjusticiable.

Question 9

When does adequate and independent state law grounds NOT apply?

Answer 9

Where a state court’s decision is based upon a federal interpretation of a similar federal law, adequate and independent state grounds will not apply, and the Supreme Court may review.

Question 10

Congress power to tax and spend for general welfare: rational basis

Answer 10

provided there is a rational basis to believe the appropriation will promote the general welfare, congress may expend funds for that purpose.

Question 11

Dormant commerce clause: discriminatory law

Answer 11

If a state law discriminates on its face between in state and out of state economic actors, the state must show that the regulation is narrowly tailored to serve a compelling state interest.

Question 12

Establishment Clause: Tax exemptions

Answer 12

Tax exemptions that apply solely to religious groups are invalid.

Question 13

War power

Answer 13

The Constitution makes the President the commander in chief of the armed forces, BUT it gives Congress the power to declare war and raise an army and navy. The President can respond to attacks or emergency situations. The President cannot declare war.

Congress may only exercise war power when there is an actual declaration of war.

Question 14

Congress’ delegation of powers

Answer 14

Congress may delegate rule making authority/legislative power through statutes that provide an intelligible principle governing the exercise of authority.

Question 15

Designated Public Forum

Answer 15

Once the government voluntarily decides to open public property to some forms of speech, it creates a “limited or designated public forum”; and any “restriction must not discriminate against speech on the basis of VIEWPOINT and will have to pass strict scrutiny.”

Question 16

Residency requirements: Right to vote

Answer 16

Short residency limits before voting, and the requirement to show a photo ID, are constitutional restrictions on the right to vote.

Question 17

Supreme Court Original Jurisdiction

Answer 17

Congress may NOT diminish or increase the Supreme Court’s original jurisdiction.

Question 18

Supreme Court Appellate Jurisdiction

Answer 18

Congress has the power to limit OR enlarge the Supreme Court’s APPELLATE jurisdiction, but it cannot eliminate all avenues of appellate jdx.

(“Supreme Court’s appellate jdx is subject to such exceptions and regulations as Congress shall make”)

Question 19

Congress’s Investigatory Power

Answer 19

Congress does not enjoy a power of investigation that is listed in the U.S. Constitution. Consequently, when it investigates, it can only do so on matters that might be the subject of legislation.

Question 20

State Action: 14 amendment

Answer 20

Remember, if a question is asking about the 14th Amendment, the actor needs to the a STATE actor, not a federal actor.

A federal actor can only be liable under the 5th amendment DPclause, not the 14th DP Clause.

Question 21

Alienage discrimination: Public Function exception

Answer 21

states can discriminate based on alienage for positions performing a public function, otherwise, strict scrutiny applies, and rational basis will apply.

Question 22

One person one vote exception

Answer 22

One person one vote exception does not apply to special elections where the election is based on land. District can allot votes based on land ownership.