Con Law

Question 1

Con Law Essay Roadmap

Answer 1

I. Can the matter be addressed by this court? (ripeness, mootness, standing)

II. What type of Constitutional issue is presented?

1. Scope of Congressional power? (Commerce Power, Power to Tax and Spend)
2. State interference with power? (Supremacy Clause, Dormant Commerce Clause, Privilege and Immunities Clause, Contract Clause)
3. Individual rights? (state action, procedural due process, substantive due process, equal protection, takings clause, 1st Amendment)

Question 2

Individual standing

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Answer 2

P must prove:

1. Injury in fact: An actual or imminent injury
2. Causation: The injury is caused by the conduct complained of, and
3. Redressability: It is likely that the injury will be redressed by a favorable decision

Question 3

Third-party standing

Answer 3

P must prove:

1. Individual standing, and
2. A special relationship between P and the third-party; or
3. That it is difficult for the third party to assert his own rights.

Question 4

Organizational standing

Answer 4

P must prove:

1. The members have standing in their own right.
2. The interest asserted are related to the organization’s purpose, and
3. The case does not require participation of individual members.

Question 5

Federal taxpayer standing

Answer 5

A federal taxpayer has standing to sue over a federal tax or spending program that violates the Establishment Clause

Question 6

Timeliness: ripeness and mootness

Answer 6

1. Ripeness: a case will not be heard if there is not yet a live controversy or immediate threat of harm (future wrong).
2. Mootness: a case will not be heard if a live controversy existed at the time the complaint was filed but has since been eliminated.
3. Exception: a) the controversy is capable of repetition, yet evading review (e.g. abortion litigation) or b) voluntary cessation of the activity by D.

Question 7

State Action Doctrine

Answer 7

For an action to violate the Constitution, there must be government involvement with the challenged action

The action of a private actor can qualify as state action if:

1. public function: the private actor performs functions that are traditionally and exclusively public functions; or
2. heavy involvement: the state is heavily involved in the activity, such as by commanding, encouraging, or being entangled with the activity.

Question 8

Congressional Power (the legislative branch)

Answer 8

Congress has limited enumerated powers to:

1. Regulate interstate commerce: channels, instrumentalities, persons & things moving, activities with substantial effect.
2. Regulate intrastate commerce: if there is a rational basis to believe that the commercial or economic activities has a substantial (cumulative) economic effect on interstate commerce. For noneconomic activities - direct and substantial effect on interstate commerce.
3. Tax and spend
4. War Powers: declare war
5. Naturalization and bankruptcy
6. Necessary and Proper Clause: broad authority to enact laws that are necessary and proper to execute any of the enumerated powers. The law need only be rationally related to the enumerated power.

Question 9

Presidential Power (the executive branch)

Answer 9

1. Carry out laws
2. Executive order
3. Treaties with foreign nations
4. Appointments of ambassadors, federal judges, cabinet members, subject to Senate approval.
5. Foreign affairs
6. Pardon federal offenses
7. Veto bills by sending it back to Congress unsigned with a message stating reasons.
8. Executive privilege: has a qualified right to refuse to disclose confidential information relating to his performance of his duties.

Question 10

Supremacy Clause

Answer 10

the Constitution is the supreme law of the land. Any state law that directly conflicts with federal law will be preempted by federal law.

1. Conflict preemption: where state law is inconsistent with a valid federal law covering the same subject matter.
2. Field preemption: where the federal government intends to occupy the entire field the state cannot regulate the field.

Question 11

Dormant Commerce Clause

Answer 11

DCC restricts the states from regulating activity that affects interstate commerce if the regulation is 1) discriminatory or 2) unduly burdensome.

1. Discriminatory: a regulation that is facially discriminatory against out-of-towners (local interests > nonlocal interest) will be permitted only if it is necessary to achieve an important noneconomic governmental interest such that there are no reasonable alternatives. Facially discriminatory regulations are per se violations of DCC.
2. Undue burden: a regulation that unduly burdens interstate commerce will be permitted if it is rationally related to a legitimate government interest, and the burden imposed on interstate commerce must be outweighed by the benefits to the state.
3. Exceptions: a) when the state is a market participant, it may favor local interests over nonlocal interests; b) Congress consented.

Question 12

Privileges and Immunities Clause

Answer 12

A state cannot intentionally discriminate against noncitizens regarding rights fundamental to national unity.

1. rights fundamental to national unity focus on commercial activities, such as right to support oneself, right to be employed, engage in business, practice professions, or civil liberties.
2. Corporations and aliens are not considered citizens for this rule and not afforded protection.
3. Exception: substantially related + no less discriminatory alternative means available.

Question 13

Contracts Clause

Answer 13

State governments may not pass laws that retroactively and substantially impair existing contracts.

private contract: if a state is substantially impairing private K, the law must be reasonable and appropriate to serve a significant and legitimate public purpose.

public contract: must be necessary to serve an important public purpose

Question 14

Freedom of Religion

Answer 14

1st Amendment right, applicable tot the states through 14th Amendment. There are two clauses:

1. Free Exercise Clause
2. Establishment Clause

Question 15

Free Exercise Clause

Answer 15

Free Exercise Clause bars any law that prohibits or seriously burden the free exercise of religion, unless there is a compelling government interest.

Freedom to believe in a religion is absolutely protected; the government may not deny benefits or impose burdens based on religious belief.

Freedom to act on religious belief is less protected; the government may not intentionally target religious conduct, but a neutral law of general applicability that impacts religious conduct will be upheld if it is rationally related to a legitimate interest.

Question 16

Establishment Clause

Answer 16

Establishment Clause laws respecting the establishment of religion, and laws that discriminate against religious speech or conduct or among religions are subject to strict scrutiny.

Court generally utilizes a consideration of “historical practices and understandings” (e.g., presumption of constitutionality for longstanding monuments, symbols, and practices)

Question 17

Freedom of Speech

Answer 17

The 1st Amendment protects an individual’s right to free speech.

Free speech essay question roadmap

1. Is the conduct a “speech”?
2. Is the regulation a prior restraint?
3. Is the regulation content-based? What category?
4. Is the regulation content-neutral? Time, place, or manner restriction? Public or non-public forum?
5. Is the regulation vague or overbroad?

Question 18

Content-based speech regulation

Answer 18

Forbid the communicative impact of the expression.

Strict scrutiny applies to content-based restrictions.

Question 19

Unprotected categories of speech

Answer 19

The only requirement for regulating unprotected speech is that the government must regulate in a content-neutral way:

1. Obscenity: describes or depict sexual conduct that i) appeals to the prurient interest (community standard), ii) is patently offensive (community standard); and iii) lacks serious literacy, artistic, political, or scientific value (national standard).
2. Misrepresentation and defamation
3. Imminent lawless actions: government can ban speech if it is intended to incite and likely to produce imminent lawless actions.
4. Fighting words: words that are likely to cause the listener to commit an act of violence.

Question 20

Content-neutral speech regulations

Answer 20

allowed if they:

1. serve a significant/important government interest;
2. are narrowly tailored to serve that interest; and
3. leave open alternative channels of communications.

Question 21

Time, place, and manner restrictions

Answer 21

All must be viewpoint neutral, the rules differ based on the types of forum

Public and designated public forums:

• public forums are generally open to the public. Designated public forum are forum that are opened up to the public at large for a specific purpose. Regulations must be:
• content neutral and viewpoint neutral
• serve a significant / important government interest
• be narrowly tailored to serve that interest; and
• leave open alternative channels of communication.

Limited and nonpublic forums:

• limited public forums are forums that are opened for limited use by certain groups, nonpublic forums are closed to public. Regulations must be:
• viewpoint neutral
• serve a legitimate government interest; and
• reasonably related to serve that interest

Question 22

Commercial Speech (advertising)

Answer 22

Regulations on commercial speech must:

• serves a substantial government interest
• directly advances that interest; and is
  narrowly tailored such that. there is a reasonable fit (need not be the least restrictive means) to serve that interest.

Question 23

Symbolic Speech (freedom not to speak or the freedom to communicate an idea by use of a symbol or communicative conduct)

Answer 23

Regulations must:

• be within the constitutional power of the government to act
• furthers an important governmental interest unrelated to the suppression of speech, and
• prohibits no more speech than necessary

Question 24

Vagueness

Answer 24

A speech regulation is unconstitutionally vague if it is so unclearly defined that a reasonable person would have to guess its meaning.

Question 25

Overbreadth

Answer 25

A speech regulation is unconstitutionally overbroad if it bans both protected speech and unprotected speech

Question 26

Unfettered discretion

Answer 26

A speech regulation is unconstitutional if it leaves unfettered discretion to the decisionmaker by not setting forth narrow and specific grounds for denying a permit.

Question 27

Prior restraints

Answer 27

Prior restraints prevent speech from being heard before it even occurs. This is rarely allowed

Only allowed if government can show that some irreparable or serious harm to the public will occur and then there must be narrowly drawn standards and a final determination of the validity of the restraint (restraining body must seek an injunction to prevent dissemination).

Question 28

Freedom of association

Answer 28

1st Amendment case law that recognizes an individual’s rights to freely associate with other individuals in groups.

• Laws that prohibits participation in a group or require disclosure of participation must meet strict scrutiny.
• criminal punishment based on political association requires active membership with knowledge of the group’s subversive nature and intent to further the illegal objectives of the group.

Question 29

Substantive Due Process

Answer 29

SDP limits the government’s ability to regulate certain areas of human life, such as the substantive interests in life, liberty, and property.

• Fundamental rights - Strict Scrutiny applies: rights relating to marriage, living with one’s family, child bearing, child rearing, domestic travel, voting, and other 1st Am rights.
• Nonfundamental right - Rational basis applies: applies to everything that is not fundamental rights, but typically social or economic regulations.

Question 30

Procedural Due Process

Answer 30

PDP requires the government to use fair process before intentionally depriving one’s life, liberty, or property Due process requires notice and an opportunity to be heard.

Process due:

• for judicial proceedings this includes the right to a hearing, counsel, call witnesses, a fair trial, and appeal.
• for nonjudicial proceedings, a balancing test by the court to weigh:

1. The individual’s interest in the rights affected;
2. The added value of the procedural safeguards;
3. The government’s interest in fiscal and administrative efficiency.

Question 31

Equal Protection Clause (EPC)

Answer 31

EPC prohibits the government from treating similarly situated persons differently.

• violation on its face: the government treats people differently in a statute or regulation.
• violation as applied (discriminatory intent and impact): the government treats people differently through the administration of a statute.
• intentionally different treatment is required for heightened review under EPC.

Question 32

EPC classification scheme

Answer 32

EPC is at issue when people are treated different based on classifications.

• suspect classifications includes only those based on race, national origin, and state alienage and are subject to strict scrutiny.
• quasi-suspect classifications include only those based on gender and illegitimacy and are subject to intermediate scrutiny.
• Nonsuspect classifications include everything else, including those based on nonsuspect and nonfundamental rights, such as economic and social welfare, and are subject to rational basis review.
• EPC fundamental rights are subject to strict scrutiny, most common rights at issue involve: voting, being a political candidate, having access to the courts, interstate travel, 1st Am rights.

Question 33

Takings Clause (5th Amendment)

Answer 33

Private property may not be taken for public use without just compensation.

Question 34

Total takings

Answer 34

1. permanent physical invasion or confiscation of the property ; OR
2. use restriction that denies all economically beneficial use of the property.

Question 35

Temporary takings

Answer 35

Temporarily denies all economic use.

The court considers all relevant circumstances including

• **the economic impact on the owner,
• the length of the delay,
• the reasonable expectation of the owners, and
• the good faith of the government**

Question 36

Regulatory takings

Answer 36

Regulations, such as zoning ordinances, that decreases the economic value of the property by prohibiting most beneficial use are not considered takings if there is still an economically viable use for the property.

Court engages in a balancing test to determine:

1. the character of the invasion (value to the community of the social goal being advanced);
2. the economic impact on the claimant; and
3. the extent of interference with the investment backed expectation of the owner.

Question 37

Public use

Answer 37

liberally construed if the state’s use of the property is rationally related to a conceivable public purpose.

Question 38

Just compensation

Answer 38

measured by the market value of the property at the time of the taking.