Con Law

Question 1

Federal courts may hear based on

Answer 1

i. Law-based federal jurisdiction from Constitution, federal laws and treaties, admiralty and maritime laws
ii. Party-based federal jurisdiction where U.S. gov’t is a party, State v. State, State v. other State citizen,
citizens from different states (diversity jurisdiction), foreign diplomats

Question 1

Individual Standing

Answer 1

Π must show “personal stake.”
1) Π’s actual or imminent injury,
2) causation,
3) redressability

There is no “injury” to taxpayers (unless litigating tax bill or fed taxpayer challenging spending on
1A religious grounds), legislators, Constitution lovers (abstract desire to see gov’t comply)

Question 2

Organizational Standing

Answer 2

requires that 1) individual members have standing + 2) interest asserted is
related to organization’s purpose + 3) individual member participation in the suit is not required (there is no individualized injury, remedy would be the same to all members, or injunction would solve everyone’s problems) (no damages because each member would have to show damages)

Question 3

Ripeness

Answer 3

Π must show harm or imminent threat of harm. Proposed law or action not yet taken are not real cases or controversies

Question 4

Mootness (whether suing too late)

Answer 4

A case is moot if the dispute has been resolved (i.e., there is no redressability), unless “capable of repetition, yet evading review” (e.g., pregnancy can recur)

Question 5

Political Question

Answer 5

Political Q: Fed court will not take issues involving a matter for another branch of gov’t that the judicial process is inherently incapable of resolving and enforcing
1. Textually demonstrable constitutional commitment to other branches (Senate’s sole power to impeach), lack of judicial standards (partisan but not racial gerrymandering, foreign affairs)

Question 6

Abstention

Answer 6

Fed court will abstain (defer to state courts) if claim is based on an undecided issue of state law

Question 7

Adequate and Independent State Law Grounds

Answer 7

SCOTUS will not hear a case from a state high court if its
decision can be supported on state law grounds alone (even if federal Q involved), unless it was unclear
whether based on state law alone, or state follows federal constitution (treat as federal law)

Question 8

No Advisory Opinions

Answer 8

Advisory opinions lack an actual dispute b/w pts or any legally binding effect. Matter must be a real and substantive present (or specific future) controversy capable of specific relief

Question 9

11th Amendment

Answer 9

Private pts cannot sue state gov’t in fed court for damages (injunctions OK)

Allowed if v. state officials (incl. for damages), state expressly consents, or based on 13A-15A powers

Question 10

Congressional Power

Answer 10

Congress does NOT have regulatory (police) power to promote health, safety, and welfare of residents except in DC

Commerce clause
Taxing power
Delegation power
Property power
Speech and debate clause power
Appropriations power

Question 11

Commerce Clause

Answer 11

Broad power to regulate interstate commerce (ISC), i.e., regulate channels, instrumentalities,
activities that have a substantial effect on ISC (even intrastate, economic activity under cumulative effect doctrine)

Shared with state and local gov’t through dormant commerce clause (see § IV-e for tests)
i
Cumulative effects doctrine: To determine “substantial effect,” consider aggregate effect of similar actions
i
Cannot regulate intrastate non-economic activity (e.g., guns near school) unless economic effect on ISC

Comprehensive scheme EXCEPTION: If Congress enacts a program that aims at interstate or economic activity, it can sweep up isolated instances of intrastate non-economic activity if those are necessary to make the program effective and have a substantial national economic effect

Question 12

Taxing power

Answer 12

Impose and collect taxes to pay debts and spend for the general welfare w/ purpose to raise revenue

Question 13

Spending power

Answer 13

Spend for any public purpose to provide for general welfare (e.g., education, roads, space program)

Congress cannot regulate for the general welfare except in non-state federal territories

Question 14

Delegation power

Answer 14

Congress can delegate powers it possesses and create an agency with legislative power to make
rules. Intelligible guidelines for carrying out concrete objectives are required (loose standard—think RB)

Question 15

Property power

Answer 15

Regulate (pass any law) and dispose of federal property, including Indian property and wild animals

Question 16

Speech and debate clause

Answer 16

A member of Congress (+ aides) cannot be punished for anything said on legislative floor

Question 17

Impeachment power

Answer 17

Congress can remove the president, federal judges, and federal officials through impeachment

Question 18

Appropriations power

Answer 18

Congress can pass a bill to direct how the president must spend money

Earmarking funds: Executive branch must spend the funds, or obtain Congress approval to refuse spending

Question 19

Congressional Authorization 3 prong test

Answer 19

Where the president acts with Congress’s express/implied authority, his power is at its apex, and his action is likely valid.

Where Congress is silent, the president’s action is upheld as long as the act does not take over another branch’s powers or prevent another branch from performing its tasks.

Where the president acts against Congress’s express will, he has little authority, and his action is likely invalid

Question 20

Executive powers

Answer 20

Enforcement of laws
Appointment power
Removal power
Pardon power
Privileges
Commander-in-chief (military) powers
International affairs

Question 21

Enforcement of Laws

Answer 21

May delegate to other executive officers. Attorney general is chief
law-enforcement official. May direct federal executive agencies (executive orders) but not private parties
outside the executive branch unless authorized by Congress. May set up presidential advisory commissions

Question 22

Appointment power

Answer 22

President can appoint officers and high-level officials with consent of Senate

Question 23

Removal power

Answer 23

President can remove high-level, purely executive officials without cause. President may
be able to remove other executive officials for good cause based on statute (e.g., corruption, incompetence)

Question 24

Pardon Power

Answer 24

President may grant pardons before charge or after conviction to federal criminal

Question 25

Veto power

Answer 25

Proposed legislation becomes law unless wholly vetoed within 10 days of passing legislation

Line-item veto is unconstitutional. President may only approve/reject a bill in toto

Legislative veto (Congress changes law by majority vote after president signs) is unconstitutional

Question 26

Presidential Privileges

Answer 26

Absolute privilege to refuse to disclose national security secrets.

Qualified privilege to confidential comm’n between president and advisors (balance confidentiality vs. purpose to reveal or not)

Question 27

Commander in Chief powers

Answer 27

Respond to attacks (only Congress has power to initiate war), emergency power (broad discretion to send troops abroad w/o declaration of war, whether or not Congress is in session), wartime power (seize private property in wartime unless Congress denies it), battlefield tactical decisions

Question 28

International affairs

Answer 28

Treaty power (make agreements between countries with 2/3 Senate consent), executive agreements with foreign nations (Congress ratification not needed)

Question 29

Supremacy Clause

Answer 29

Constitution, federal laws, and treaties are supreme law

Express preemption: Federal statute says federal law is exclusive in an area

Implied preemption: If state law conflicts with fed law, Congress shows clear intent to occupy the field, or
state law impedes federal objectives

If no conflict or no impedance of federal objectives, state law may be broader (e.g., higher minimum wage)

Question 30

Federal Function Immunity

Answer 30

Federal instrumentalities (gov’t and agencies) are immune from…

State taxation where the “legal incidence” of the tax is on the U.S. without consent of Congress
Nondiscriminatory, indirect taxes OK if no unreasonable burden, e.g., state tax on fed employees

State regulation that would interfere with fed functions (fed law would control, per supremacy clause)

Question 31

Sovereign Immunity

Answer 31

Fed gov’t (U.S.) cannot be sued w/o consent. U.S. or another state may sue a state w/o consent

Question 32

10th Amendment police power

Answer 32

States have broad power to regulate areas traditionally w/in power of states (involving health, safety, welfare, morals), limited by contrary fed power (laws, tax immunity, enumerated powers, foreign affairs, exclusive jx)

Question 33

Anti commandeering doctrine

Answer 33

Under case law, Congress (and likely executive orders) cannot make state legislatures pass a law or require state executive officials (e.g., police) to enforce federal law. However…

Mere prohibitions are not commandeering

Spending power can indirectly regulate state if condition for money is clear + not unduly coercive

Question 34

Dormant Commerce Clause

Answer 34

State may not regulate ISC in a way that is discriminatory or unduly burdensome

If Congress hasn’t enacted legislation, states may regulate local transactions affecting ISC, only if the regulation does not discriminate against out-of-state actors to benefit local economic interests (“economic protectionism”) and does not unduly burden interstate commerce (burden < state’s interest in the action)

Question 35

If a state law does discriminate on its face against OOS actors

Answer 35

invalid unless it serves important noneconomic state interest + no reasonable nondiscriminatory alternatives (usually invalid)
a. EXCEPTION: State may prefer own citizens as a market participant (buy, sell, hire, etc.)

Question 36

If a state law is facially neutral and merely incidentally burdens ISC

Answer 36

use balancing test: Law is
invalid only if burden on ISC > promotion of legitimate local interests (i.e., undue burden on ISC)

Question 37

State Action Requirement

Answer 37

Significant state involvement: Private action is closely encouraged and supported by the state (state hand in private glove); e.g., court seeks to enforce a racially restrictive covenant, or statute requires segregated public toilets

Public function theory: Private actor is delegated a function traditionally reserved to states (company town, not mall)

Mutually beneficial relation derived from unconstitutional behavior; e.g., state gets increased revenues and rents from privately owned restaurant that discriminates

Question 38

Strict Scrutiny

Answer 38

Gov’t must prove its classification is necessary to achieve a compelling gov’t interest

Law must discriminate on its face or have actual motive (if facially neutral)

Classification is necessary if it is the least-restrictive means (no alternative to lessen the burden) or is
narrowly tailored to serve the compelling gov’t interest (difficult test to meet—gov’t almost always loses)

Question 39

Intermediate Scrutiny

Answer 39

Gov’t must prove its classification is substantially related to an important gov’t
interest. Law must discriminate on its face or have actual motive (if facially neutral)

Question 40

Rational Basis

Answer 40

Plaintiff must prove classification is not rationally related to any legitimate gov’t interest

Question 41

Procedural Due Process

Answer 41

protects persons against intentional deprivation of life, liberty or property w/o due process of law

Persons: All people including aliens and corporations, not just citizens

Liberty: Freedom of action (e.g., bodily restraint), constitutional freedom Life: Threat to life

Property: More than belongings. Equal protection rights, constitutional freedom, e.g., public education, public employment (no property interest if “at will”), benefit under state law (welfare), licenses

Question 42

Mathews Balancing Factors

Answer 42

(1) importance of interest to the person (more important→more process needed), (2) gov’t interest/burden inefficiency (more burdensome to get protection→less process needed), (3) value of procedural safeguards
(more likely that gov’t will make a mistake without procedural protection→more process needed)

Due process rights may be waived if voluntary and made knowingly

Question 43

Fundamental Rights

Answer 43

Contraception (privacy)
iMarriage (privacy)
Parentage/Procreation (privacy):
Education
Relatives
Death
Sexual orientation (strict RBR):
Travel
Obscene material
Vote:
15A (no race discrimination
19A (no sex discrimination in voting), 24A (no poll taxes)
Running for election etc is RB
Free association (1st Amendment): Right to belong to political groups

Question 44

Takings clause (provided by 5A, applicable to states via 14A)

Answer 44

Gov’t cannot take private property for public use without just compensation
1. Public use means “public purpose.” Burden on gov’t to show the action is rationally related to any
legitimate purpose (such as health, welfare, safety, aesthetic reasons)
2. “Just compensation”: loss of FMV to owner, not gain to taker (not comped if worthless property)

3. If the action is a “taking,” just compensation is required; mere “regulation” does not require compensation
4. Examples of reg: zoning ordinance, ordering destruction of diseased trees, landmark ordinance

Question 45

Actual/ physical taking

Answer 45

If gov’t takes one’s property by actual or physical appropriation, it is a taking
1. Includes permanent, physical invasion no matter how minor (e.g., running cable lines)
2. Temporary taking: Not a per se taking. Balance the circumstances (e.g., planners’ good faith,
reasonable expectations of owners, length of delay, actual economic impact) to determine whether
fairness and justice require just compensation

Question 46

Regulatory taking

Answer 46

A regulation that decreases the value of property. Per Lucas, it is not a taking unless it
deprives all economically beneficial use of land (e.g., disallowing land development)

Partial taking occurs when only a portion of the property owner’s land is rendered economically
useless through an intrusion or regulation.

Penn Central balancing test: 1) regulation’s economic impact on the claimant, 2) extent to which the regulation interferes with distinct investment- backed expectations (purpose of property?), 3) character of the government action (for welfare?)

Question 47

Equal Protection Clause

Answer 47

(EPC: applicable to states via 14A and to fed via 5A DPC for gross discrimination)

Applies where a statute or gov’t action treats similarly situated people in a dissimilar manner or singles out one class of persons (i.e., classifies people). Compare sDPC protection of fundamental rights of everyone

Question 48

Race Discrimination

Answer 48

suspect classification subject to SS
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De jure (by law) segregation almost always unconst’l, e.g., school segregation, banning interracial marriage

De facto OK (happens through private choice and social factors, e.g., different races live in different areas)

Affirmative action: Overt classifications may pass SS review in affirmative action
Compelling interests: Remedy state’s own (not general societal) past discrimination w/ narrow
tailoring of benefits to those actually affected, or diversity in higher education (post-secondary)

Question 49

Alienage Discrimination

Answer 49

(treating citizens & non-citizens differently) – suspect classification subject to SS
i. Public function EXCEPTION: State may require citizenship for state jobs that directly affect politics – RB
ii. Illegal (undocumented) aliens not a protected classification – RB Illegal alien children – IS
1. Fed law may adopt immigration policy (e.g., 5yr residency req for fed Medicare benefits) – RB

Question 50

Gender Discrimination

Answer 50

IS (gov’t must show “exceedingly persuasive justification,” closer to SS)
i. Affirmative action: Remedial (even for past, societal reasons) or benign discrimination satisfies IS

Question 51

Article IV Comity Clause

Answer 51

State gov’t cannot discriminate against non-residents of the state if economic discrimination affects “fundamental rights” or “important economic activities,” unless the discrimination is closely related (no less discriminatory alternative could be achieved) to a substantial gov’t interest (IS)

Non-resident discrimination cannot affect rights including civil liberties and right to work and pursue livelihood, e.g., higher license fees or taxes for out-of-staters, abortions or employment for locals only

14th Amendment (narrow scope, rarely used): State cannot deny citizen rights of national citizenship, e.g., to travel state lines and establish residency in a new state

Question 52

Contracts Clause

Answer 52

Prohibits state legislation from substantially impairing the obligation of existing public/private K

EXCEPTION: Regulation of private K is reasonably and narrowly tailored to promote important and legitimate public interest. Regulation of public K receives stricter scrutiny

Question 53

Ex post facto law

Answer 53

State/fed may not retroactively alter criminal offense or punishment that puts Δ in worse position

Question 54

Bill of Attainder

Answer 54

State/fed may not pass a legislative act that inflicts punitive punishment without a trial on named
individuals or an easily ascertainable group for past conduct

Question 55

Free Speech Clause (through 1A to states through 14A)

Answer 55

(speech = words, symbols, expressive conduct intended and reas. likely perceived as a message)
i. Restricts gov’t regulation of private speech. Does not constrain gov’t from voicing its opinions or funding only certain private speech, subject to other constitutional limitations

Question 56

Facial Attacks on Speech

Answer 56

Prior restraint: Gov’t action restricting speech before it occurs (rather than punishing after) is
disfavored. Such restriction must be narrowly drawn and show special societal harm will result

Overbreadth: Ordinance invalid as overbroad if it prohibits activities that may be constitutionally
forbidden and also those that may be protected under 1A (allowable under another standard)

Vagueness: Regulation is void as vague if ordinance is so unclear that reasonably intelligent
persons would have to guess at its meaning and would differ as to its application

Unfettered discretion: A regulation cannot give officials unfettered discretion over determining
speech issues (e.g., power to raise permit fee, or require review); there must be defined standards

Question 57

Content Based Regulation

Answer 57

Strict scrutiny triggered if gov’t regulates content- or viewpoint-based speech.That is, there are few restrictions on content of speech. But there are unprotected speech

EXCEPTIONS:
Obscenity: Regulation valid only if the work 1) appeals to prurient (sexual) interests based on
local community standards, 2) depiction or description is patently offensive per local standards, 3)
as a whole lacks serious literary, artistic, political, scientific (LAPS) value to a reasonable person

Defamation: See Defamation in Torts Magicsheets. Additional constitutional issues apply for
public matters: falsity and fault. Public info may be protected if newsworthy and not offensive

Unlawful advocacy: May prohibit if the speaker (subjectively) intends to produce “imminent,
unlawful action” + speech is (objectively) likely in fact to produce “imminent, unlawful action”

Hostile audience: Speech eliciting imminent, violent reaction from the crowd. But police must
make reasonable efforts to protect the speaker

Fighting words: Likely to incite ordinary citizen to acts of immediate, violent retaliation to speaker

True threats: Intended to convey serious threat of bodily harm (e.g., cross burning to intimidate)

Question 58

Content-neutral regulation / time, place, manner (TPM) regulation

Answer 58

(historically open to speech-related activities, e.g., sidewalk, park) and designated public forums (not historically open to speech but designated for it, e.g., classroom for after-school civic activities) must be content- and viewpoint-neutral + narrowly tailored (no total bans) to serve an important interest + leave open alternative channels of communication (most legitimate interests meet importance standard)

Question 59

Limited Public Forums

Answer 59

(not historically linked to speech but open for a purpose, e.g., school gym for town debate) and non-public forums (not open to public, e.g., military base, school in session) may be TPM regulated only if viewpoint-neutral + reasonably related to a legitimate interest

Question 60

Commercial Speech

Answer 60

protected if it 1) is not false or deceptive and 2) does not relate to unlawful activity. But gov’t can still regulate if it 1) serves a substantial gov’t interest + 2) directly advances that interest + 3) narrowly tailored to achieve that interest (reasonable fit b/w goals and means)

Question 61

Establishment Clause

Answer 61

Prohibits gov’t from preferring one religion over another or establishing a religion
1. If regulation on its face discriminates or prefers a religion, or prefers religion generally over non- religion → SS
a. If speech is involved, can also raise viewpoint discrimination under the free speech clause

Question 62

Free Exercise Clause

Answer 62

Gov’t may not prohibit the free exercise of any religion

Genuine belief (threshold issue)? Sincere religious beliefs are absolutely protected. The belief
must parallel orthodox religious beliefs; it cannot be a purely political or philosophical view

Generally applicable? Gov’t may regulate (under RB) an activity if the regulation is neutral w/r/t
religion and is of general applicability, even if it incidentally burdens religious conduct

EXCEPTION: If person quits job for sincere religious reason, gov’t cannot refuse
unemployment benefits

If law is not generally applicable and was motivated by intent to interfere with religion→SS

EXCEPTIONS: Sabbath observance unemployment benefits, start Amish schooling at 16