Con Law

Question 1

For purposes of the bar exam, the Constitution can be divided into a few main parts:

Answer 1

1. The main body (establishes a federal government with limited power and divides that power among three branches)
2. the Bill of Rights, and
3. the Civil Rights Amendments.

Question 2

Federal judicial power (derived from Article III) extends to cases involving:

Answer 2

• Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws
• Disputes between states, states and foreign citizens, and citizens of diverse citizenship

Question 3

Congress can define the original and appellate jurisdiction of these courts but is bound by the standards set forth in ____ concerning subject matter and party jurisdiction and the requirement of a “case or controversy.” Congress

Answer 3

Article III

Question 4

Federal courts can hear a matter only if there is a ____

Answer 4

“case or controversy.”

Question 5

Whether there is a “case or controversy” (that is, whether a case is “justiciable”) depends on:

Answer 5

• What the case is requesting (is it an advisory opinion?)
• When it is brought (is it ripe or moot?)
• Who is bringing it (does the plaintiff have standing?)

Question 6

Federal courts cannot issue advisory opinions, which are decisions that lack

Answer 6

(1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties

Question 7

The federal courts can still provide ____ review of a law (that is, by declaratory judgment action) without rendering an advisory opinion, assuming the “case or controversy” requirements discussed in this section are met.

Answer 7

pre enforcement

Question 8

Ripeness

Answer 8

To avoid issuing advisory opinions, courts wait until laws and policies have been formalized and can be felt in concrete ways.

Question 9

A plaintiff can establish ripeness before a law or policy is enforced by showing two things:

Answer 9

• The issues are fit for a judicial decision (The more the case involves legal as opposed to factual issues, the more likely the case will be fit for review)
  AND
• The plaintiff would suffer substantial hardship in the absence of review

Question 10

Mootness

Answer 10

A live controversy must exist at all stages of review. Therefore, the plaintiff needs to be suffering from an ongoing injury, or else the case will be dismissed as moot.

Question 11

A claim is not considered to be moot in the following situations, even
if the injury has passed:

Answer 11

• Controversies capable of repetition but that evade review because of their inherently short duration
• Cases where the defendant voluntarily stops the offending practice but is free to resume it (turns on the facts)
• Class actions in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable

Question 12

____ bars consideration of claims before they have been developed; ____ bars their consideration after.

Answer 12

Ripeness; mootness

Question 13

A person must have ____ at all stages of litigation, including on appeal.

Answer 13

standing

Question 14

Elements of standing

Answer 14

injury, causation, and
redressability.

Question 15

People have no standing merely as ____ to claim that government action violates federal law or the Constitution. The injury is too generalized.

Answer 15

“citizens” or “taxpayers”

Question 16

To have standing, a person needs to show an injury in fact, which requires both:

Answer 16

• A particularized injury—an injury that affects the plaintiff in a personal and individual way AND
• A concrete injury—one that actually exists (that is, not hypothetical)

Question 17

A taxpayer has standing to challenge their own ____ bill.

Answer 17

tax

Question 18

A person may have standing to allege that federal action violates the ____ by interfering with powers reserved to the states as long as the person has a redressable injury in fact

Answer 18

Tenth Amendment (for example, deputy sheriffs required to do handgun checks under federal law challenging the law as a violation of the Tenth Amendment).

Question 19

People have standing to challenge congressional spending measures on First Amendment ____ grounds

Answer 19

Establishment Clause

Question 20

For a taxpayer to have standing to challenge spending on Establishment Clause grounds as such, Congress’s ____ power must be involved. Thus, for example, a person would not have standing as a taxpayer to challenge federal government grants of surplus property to religious groups (because Congress is using the property power rather than the spending power) or expenditures of general executive branch funds (because the executive branch is doing the spending, not Congress).

Answer 20

spending

Question 21

A claimant with standing in their own right may assert the rights of a third party if:

Answer 21

(1) it is difficult for the third party to assert their own rights, or
(2) a close relationship exists between the claimant and the third party.

Question 22

An organization has standing to sue on behalf of its members if

Answer 22

(1) there is an injury in fact to the members,
(2) the members’ injury is related to the organization’s purpose, and
(3) individual member participation in the lawsuit is not required (for example, they’re not seeking individualized damages).

Question 23

A person has standing to bring a free speech claim alleging that the government restricted _____, even if that person’s own speech would not be protected under the First Amendment.

Answer 23

substantially more speech than necessary (in other words, that the restriction was overbroad)
-> Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment.

Question 24

The exception to standing for first amendment over-breadth claims does not apply to ____

Answer 24

commercial speech

Question 25

Standing for Free Speech Overbreadth Claims requires

Answer 25

1. Causation: There must be a causal connection between the injury and the conduct complained of.
2. Redressability: A decision in the litigant’s favor must be capable of eliminating their harm (for example, through money damages or an injunction).

Question 26

Congress can’t eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury. However, a federal statute may ____

Answer 26

create new interests, injury to which may be sufficient for standing.

Question 27

A plaintiff may have standing to enforce a federal statute if they are within the Congress meant to protect

Answer 27

“zone of interests”

-> that is, a court is likely to find standing if it concludes that Congress intended the statute to protect such persons and also intended to allow private persons to bring federal court actions to enforce the statute).

Question 28

Standing isn’t defeated simply because the plaintiff wanted to bring a case to ____. The
injury is still traceable to the government, even if the plaintiff knowingly triggered the application of the rule.

Answer 28

test the constitutionality of a particular rule

Question 29

The Supreme Court has held that the doctrine of ____ reflected in the Eleventh Amendment bars a private party’s suit against a state in federal and state courts. Similarly, sovereign immunity bars claims against a state in federal and state agencies.

Answer 29

sovereign immunity

Question 30

Exceptions to state sovereign immunity:

Answer 30

• Express Waiver
• Implicit Consent/Structural Waiver
• Actions Against Local Governments
• Suits by Other States or the Federal Government
• Bankruptcy
• Certain Actions Against State Officers
• Congress Removes the Immunity

Question 31

States can be sued if they ____ to it (that is, by waiver). Most states have expressly waived sovereign immunity, at least to a limited extent, in their ____.

Answer 31

consent; tort claims acts

Question 32

When they joined the federal union, states implicitly agreed that their sovereign immunity would yield to certain federal powers (for example, eminent domain and military-related powers).

Structural waiver applies when:

Answer 32

• A federal power is complete in itself AND
• The states implicitly consented to the federal government exercising that power as part of the plan of the Constitution

Ex: Based on the federal government’s power to raise and support a military to provide for the common defense, Congress can create veterans’ employment protections and permit veterans to sue states that refuse to accommodate their service-related disabilities. States ratified the Constitution knowing that their sovereign immunity would yield to the federal government’s complete power to build and maintain a military.

Question 33

Waiver of sovereign immunity extends to suits brought by the federal government as well as to suits by private parties if Congress ____

Answer 33

delegates its power.

Ex: Congress gave an energy company the right to build a pipeline and authorized the company to exercise the federal eminent domain power to do so. The company used that power to institute condemnation proceedings against properties in which a state had an ownership interest. The Supreme Court rejected the state’s claim
that it was immune from suit. The long history behind the federal eminent domain power, which dates back to the nation’s founding, showed that the states had consented to such suits as part of “the
structure of the original Constitution itself.” The Court also confirmed that the federal government could delegate this power, again citing historical evidence.

Question 34

____ governments (for example, a city or county) are not protected by sovereign immunity. Neither are entities like ____ departments.

Answer 34

Local; police

Question 35

States can be sued by ____, and the ____ can sue states.

Answer 35

other states; federal government

Question 36

States lack sovereign immunity in ____ proceedings, so a person can sue a state in relation to a bankruptcy proceeding.

Answer 36

bankruptcy

Question 37

A person can sue a state official

Answer 37

(1) for damages personally or
(2) to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state

Question 38

A suit against a state official is prohibited by sovereign immunity to the extent that it seeks _____

Answer 38

retroactive damages.

Question 39

Congress can remove a state’s immunity as to actions created under the ____, but it must be unmistakably clear that Congress intended to remove the immunity.

Answer 39

Fourteenth Amendment power to prevent discrimination

Question 40

A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an _____.

Answer 40

unsettled question of state law

Question 41

Federal courts will not enjoin pending state ____ (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of ____.

Answer 41

criminal proceedings; proven harassment or prosecutions taken in bad faith

Question 42

Political questions will not be decided. These are issues

Answer 42

(1) constitutionally committed to another branch of government or
(2) inherently incapable of judicial resolution.

Question 43

Examples of Political Questions

Answer 43

Challenges based on the “Republican Form of Government” Clause of Article IV; challenges to congressional procedures for ratifying constitutional amendments; the President’s conduct of foreign policy; and partisan legislative apportionment (that is, political gerrymandering).

Question 44

Examples of Nonpolitical Questions

Answer 44

Arbitrary exclusion of a congressional delegate and production of presidential papers and communications are not political questions.

Also, the Supreme Court has said that a lawsuit challenging the validity of a federal statute should not be dismissed as a political question even if the case involves a dispute between branches of the federal government regarding foreign affairs.

Question 45

The Supreme Court has original jurisdiction in all cases affecting ____, but Congress has given concurrent jurisdiction to lower
federal courts in all cases except those ____

Answer 45

ambassadors, public ministers, consuls, and those in which a state is a party

between states.

Question 46

The Supreme Court has ___ jurisdiction in all cases to which federal judicial power extends under Article III, subject to congressional exceptions and regulation.

Answer 46

appellate

Question 47

When exercising its appellate jurisdiction, generally the Supreme Court will hear the case only after ____ by the lower court.

Answer 47

there has been a final judgment

Question 48

Cases can come to the Supreme Court by one of two ways:

Answer 48

1. Writ of Certiorari—Most Cases (discretionary)
2. Appeal—Rare Cases (Mandatory)

Question 49

The Supreme Court has complete discretion to hear cases that come
to it by certiorari. The cases that come by
ertiorari are:

Answer 49

• Cases from the highest state court capable of providing a decision where (1) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (2) a state statute allegedly violates federal law; and
• All cases from federal courts of appeals

Question 50

The Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by ____

Answer 50

three-judge federal district court panels that grant or deny injunctions.

Question 51

The Supreme Court will not exercise jurisdiction if the state court judgment is based on _____—even if federal issues are involved.

Answer 51

adequate and independent state law grounds

–> If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.

Question 52

Congress can exercise the powers ____ in the Constitution (under Article I, Section 8) plus any powers ____ to carry out any of its enumerated powers.

Answer 52

enumerated; necessary and proper

Question 53

Congress has no general police power (that is, it has no general power to legislate for the health, safety, and welfare of the nation).

However, Congress has police power type powers over

Answer 53

the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capital and its property power).

Question 54

Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative powers enumerated in Article I, as long as that law doesn’t violate another provision of the Constitution.___

Answer 54

that law doesn’t violate another provision of the Constitution. (low bar = rational basis test)

Question 55

The Necessary and Proper Clause standing alone can’t support federal law. It must work ____

Answer 55

in conjunction with another federal power.

Question 56

Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for _____

Answer 56

any public purpose not prohibited by the Constitution.

Question 57

Congress could do the following under the taxing and spending power, even though it has no enumerated powers to ____:
1) Put a tax on factory carbon emissions
2) Spend for schools in states that follow federal educational standards
3) Impose a tax on the failure to purchase health insurance

Answer 57

regulate the area directly

Question 58

The federal government can tax and spend for the general welfare, but Congress can’t ____ for the general welfare.

Answer 58

directly legislate

Question 59

Under the spending power, Congress can impose conditions on the grant of money to state or local governments (so-called “strings”). These conditions are valid if they:

Answer 59

(1) are clearly stated,
(2) relate to the purpose of the program, (road/education example)
(3) are not unduly coercive, and (10% of medicaid funding)
(4) do not otherwise violate the Constitution.

Question 60

Most federal taxes will be upheld if

Answer 60

they bear some reasonable relationship to revenue production or to promoting the general welfare.

Question 61

Rarely, a tax may be regarded as an impermissible regulatory “penalty”—for example, if it seeks to ____. Conversely, what Congress labels as a “penalty” may be deemed a permissible tax if it functions as a tax in ____

Answer 61

compel rather than simply influence behavior; raising revenue or influencing (but not compelling) behavior.

Question 62

To be within Congress’s Commerce Clause power, a federal law regulating interstate commerce must either:

Answer 62

1. Regulate the channels of interstate commerce (for example, highways, waterways, telephone lines, the internet)
2. Regulate the instrumentalities of interstate commerce (for example, planes, trains, automobiles) and persons and things in interstate commerce or
3. Regulate activities that have a substantial effect on interstate commerce

Question 63

When Congress attempts to regulate intrastate (in other words, local) commercial activity under the third prong (substantial effect), the Court will uphold the regulation if it:

Answer 63

can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.

Ex: Congress could regulate the growing of wheat (or marijuana) in one’s own backyard, even if it’s for personal consumption (wider impact on prices/crime)

Question 64

The rational basis rule for aggregating local activities under the CC applies only when the regulated intrastate activity is ____.

Answer 64

economic or commercial in nature

Ex: Can’t regulate gun possession near school, but can regulate possession in connection with drug trafficking near schools.

Question 65

If the regulated intrastate activity is not commercial or economic, the Court generally will not aggregate the effects and will uphold the regulation only if ____

Answer 65

Congress can show that it nonetheless has a direct substantial economic effect on interstate commerce, which Congress generally won’t be able to do.

Question 66

The Court has interpreted the Tenth Amendment to preclude Congress from regulating noneconomic intrastate activity in areas _____

Answer 66

traditionally regulated by state or local governments.

Example: Congress cannot criminalize intrastate domestic violence against women, even though in the aggregate such violence substantially affects interstate commerce because of the loss of work, travel, and spending by victims.

Question 67

The Commerce Clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to ____

Answer 67

compel activity.

Question 68

Under the commerce power, Congress may prohibit ____ discrimination in activities that might have a substantial effect on interstate commerce. Contrast that with ____ discrimination, which Congress can directly regulate under its Fourteenth Amendment enforcement power

Answer 68

private; public (that is, by state or local governments)

Question 69

Congress may authorize private suits against state governments for _____

Answer 69

employment discrimination on the basis of race, gender, and religion.

Question 70

War and Related Powers

Answer 70

The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.

Question 71

____ regulation during war and in the postwar period to remedy wartime disruptions has been upheld.

Answer 71

Economic

Question 72

Congress authorized the ____, a specialized civilian court, to review military cases. The Supreme Court has the ability to review some, but not all, decisions from court-martial proceedings.

Answer 72

Court of Appeals for the Armed Forces

Question 73

_____ may be tried by military courts.
However, Congress can’t deny habeas corpus review to all aliens detained as enemy combatants absent a ____

Answer 73

Enemy civilians and soldiers; meaningful substitute for habeas corpus review.

Question 74

Military courts have jurisdiction over _____

Answer 74

all offenses committed by persons who are members of the armed services both at the time of the offense and when charged.

Question 75

American civilians may be tried by military courts under martial law only if ____

Answer 75

actual warfare forces the federal courts to shut down.

Question 76

Congress has a broad implied power to investigate to secure information
for potential legislation or other official action (such as for gathering information relating to impeachment). Investigation must be _____

Answer 76

expressly or impliedly authorized by the appropriate congressional
house.

Question 77

Under the investigatory power, Congress can subpoena the President’s personal information. The subpoena must:

Answer 77

advance a legitimate legislative purpose, but the Court will also balance Congress’s interests in obtaining the information against the burdens on the President.

Question 78

Property Power

Answer 78

Congress can dispose of and make rules for territories and other properties of the United States.

Question 79

Although there is no express limitation
on Congress’s power to ____ of federal property, federal ____ of private property (eminent domain) must be pursuant to an enumerated power under some other provision of the Constitution

Answer 79

dispose; takings

Question 80

Postal Power

Answer 80

Congress has an exclusive postal power. Under the postal power, Congress can classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of citizens of the general mail “privilege.”

Question 81

Power Over Citizenship

Answer 81

Congress may establish uniform rules of naturalization.

Question 82

Congress has ____ power over aliens.

Answer 82

plenary

Question 83

Aliens have ____ to enter the United States and can be refused entry because of their political beliefs. However, resident aliens must get ____ before they can be deported.

Answer 83

no right; notice and a hearing

Question 84

Congress has ____ power over naturalization and denaturalization.
However, Congress can’t ____ without their consent.

Answer 84

exclusive; take away the citizenship of any citizen—native-born or naturalized—

Question 85

Admiralty Power

Answer 85

Congress’s admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.

Question 86

Power to Coin Money and Fix Weights and
Measures

Answer 86

Congress has the power to coin money and fix standards for weights and measures.

Question 87

Patent/Copyright Power

Answer 87

Congress has the power to control the issuance of patents and copyrights.

Question 88

Typically, Congress can delegate rulemaking or regulatory power to the executive branch (including administrative agencies) or judicial branch as long as ____ are set and the power isn’t something that is ____ to Congress (for example, the
power to declare war or impeach).

Answer 88

intelligible standards; uniquely confined

–> A general standard will usually suffice as an intelligible principle.

Question 89

When an agency adopts regulations that have extraordinary economic and political significance (“major questions”), it must be able to point to

Answer 89

clear congressional authorization for the exercise of such power (Modest, vague, or subtle language in the act delegating power to the agency is not sufficient to support agency action adopting a major change)

Question 90

To pass a law, Congress must ____.

Answer 90

use bicameralism (passage of a bill by both houses of Congress) followed by presentment to the President for signature or veto

–> Attempts by Congress to create laws or control the enforcement of laws without bicameralism and presentment are invalid.

Question 91

The requirements of bicameralism and presentment mean that Congress cannot give the President a ____

Answer 91

line item veto power (the President can only approve or reject a bill as a whole).

Question 92

Congress can’t retain a ___ veto, which is when Congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment.

Answer 92

legislative (Ex: A law providing that one chamber of Congress may overturn agency regulations would be an unconstitutional legislative veto)

Question 93

Speech or debate clause

Answer 93

Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.

Note: Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.

Question 94

Presidential power derives from ____

Answer 94

Article II.

Question 95

Congressional power derives from ___

Answer 95

Article I.

Question 96

Enumerated Congressional powers

Answer 96

• Taxing and Spending Power
• Commerce Power
• War and Related Powers
• Investigatory Power
• Property Power
• Postal Power
• Power Over Citizenship
• Admiralty Power
• Power to Coin Money and Fix Weights and Measures
• Patent/Copyright Power

Question 97

The President’s powers over internal affairs are unsettled, but among them is the express power and duty to ____

Answer 97

faithfully execute the laws

Question 98

Zones of Presidential Authority:

Answer 98

1 - If the President acts with the express or implied authority of Congress, presidential authority is at its maximum and the actions likely are valid.
2 - If the President acts where Congress is silent, the constitutionality of the action is uncertain, and the Court will consider the circumstances and any relevant history.
3 - If the President acts against the express will of Congress and Congress
had authority to act, then the action likely is invalid.

Question 99

In the zone of uncertainty of presidental powers the act is unlikely to be upheld
if it ____

Answer 99

usurps the power of another governmental branch or prevents another branch from carrying out its tasks.

Question 100

It follows from the above that the President has no power to refuse to spend appropriated funds when Congress has ____

Answer 100

expressly mandated that they be spent.

Question 101

The President appoints ambassadors, justices of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for in the Constitution, with the advice and consent (that is, approval) of the Senate.

Congress, however, can vest the appointment of ____ officers in the President alone, the courts, or the heads of departments. Congress itself may not
appoint members of a body with ____

Answer 101

inferior; administrative or enforcement powers.

Question 102

The President can remove high level, purely executive officers (for example, Cabinet members) at____. Congress also cannot restrict the President from removing the head of an independent agency if that person is ____. However, Congress can provide statutory limitations (for example, removal only for good cause) on the President’s power to remove ____

Answer 102

will, without any interference
by Congress

the sole director and exercises substantial discretion

all other executive appointees.

Question 103

Congress can remove executive officers only through ____

Answer 103

the impeachment process.

Question 104

The President may grant pardons for all federal offenses but not for _____. The pardon power can’t be limited by Congress.

Answer 104

impeachment or civil contempt

Question 105

The President has no power to declare war (only Congress does), but the President, as commander in chief, can act militarily in actual hostilities against the United States without a congressional declaration
of war to _____. However, Congress, under its power to enact a military appropriation, may ____

Answer 105

protect American lives and property; limit the President.

Question 106

Challenges to the President’s conduct as commander in chief are likely to be viewed as ____

Answer 106

nonjusticiable political questions.

Question 107

The President has paramount power to represent the United States in day-to-day ____

Answer 107

foreign relations

Question 108

The President has the power to enter into treaties with the consent of _____

Answer 108

two-thirds of the Senate.

Question 109

Like other federal law, treaties are the “supreme law of the land” if they are ____

Answer 109

self-executing (that is, effective without any implementation by Congress)

Question 110

State laws that conflict with a self-executing treaty are ____

Answer 110

invalid.

Question 111

The President generally doesn’t have any independent power to issue a memorandum ordering compliance with a
treaty that ____

Answer 111

isn’t self-executing.

Question 112

A conflict between a congressional act and a valid treaty is resolved by order of adoption:

Answer 112

the last in time prevails.

Question 113

Treaties are ___ to the Constitution.

Answer 113

inferior (a treaty may not be inconsistent with the Constitution)

Question 114

Executive Agreements

Answer 114

Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent of the Senate.

Question 115

If a state law conflicts with an executive agreement, the ___ prevails.

Answer 115

agreement

Question 116

If an executive agreement conflicts with a federal law, the ____ prevails.

Answer 116

federal law

Question 117

The President has a privilege to ____ so that the President can receive candid advice and protect national security.

Answer 117

keep certain presidential communications secret

Question 118

In criminal proceedings, presidential communiques will be available to the prosecution where ____

Answer 118

a need for such information is demonstrated.

Question 119

The President is subject to state criminal subpoenas of the President’s ____—such records do not fall under the executive privilege.

Answer 119

personal records

Question 120

The President has absolute immunity from civil damages based on any action taken while ____, but there is no immunity for acts that allegedly occurred ____

Answer 120

exercising official responsibilities; before taking office

Question 121

If ____ have exercised discretionary authority in a sensitive area, they can share in the immunity for suits brought concerning that area.

Answer 121

presidential aides

Question 122

The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges). Grounds include treason, bribery, and high crimes and misdemeanors. A ____ vote in the House is necessary to bring impeachment charges, and a ____ vote in the Senate is necessary to convict and remove from office.

Answer 122

majority; two-thirds

Question 123

Types of Exclusive Federal Powers

Answer 123

1. Some enumerated powers are exclusively federal because the Constitution limits or prohibits the use of the power by states
2. Other enumerated powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (for example, declaration of war, federal citizenship).

Question 124

Under the Tenth Amendment, all powers not granted to the federal government or prohibited to the states are____.

Answer 124

reserved to the states or the people
-> Note, however, that federal powers are given an expansive interpretation, and thus little state power is exclusive.

Question 125

The fact that the Tenth Amendment reserves all other powers to the states means that states have general police powers—that is, they can regulate the health, safety, and welfare of their people. Such regulations will be upheld if

Answer 125

they are rational, unless they burden a fundamental right or involve a suspect or quasi-suspect classification

Question 126

Anti-Commandeering Principle

Answer 126

The Tenth Amendment limits Congress’s power to require the states to act in a particular way. In other words, Congress can’t commandeer the states by requiring them to enact state laws or to enforce federal laws.

Similarly, if Congress passes a tax
that does not apply to private businesses but merely taxes state government entities, it’s possible the Court will use the Tenth Amendment to prohibit the tax.

Question 127

Not all spending conditions are problematic. ____ spending conditions don’t violate the anti-commandeering principle.

Answer 127

Non-coercive

Question 128

Under its Fourteenth Amendment enforcement powers, Congress may restrict states from discriminating in _____

Answer 128

violation of equal protection or depriving rights protected by due process

Question 129

The anti-commandeering rule does not apply when Congress regulates an activity
in which _____

Answer 129

both the states and private actors
engage

-> Therefore, Congress can subject state and local government activities to regulation or taxation if the law or tax
applies to both the public sector and the private sector (for example, minimum wage laws).

Question 130

Intergovernmental immunity doctrine.

Answer 130

Based on the Supremacy Clause, states cannot interfere with or control the operations of the federal government

-> Thus, states can’t regulate the federal government or its agents while performing their federal functions

Question 131

A state may not directly tax _____ without the consent of Congress. However, nondiscriminatory, indirect taxes are permissible if ___

Answer 131

federal instrumentalities; they do not unreasonably burden the federal government (for example, state income tax on federal employees).

Question 132

Federal law for the supremacy clayse includes ____

Answer 132

the Constitution, federal statutes and regulations, treaties, and executive agreements

Question 133

Types of preemption

Answer 133

• Express
• Implied (conflict, frustration of purpose, field)

Question 134

Express Preemption

Answer 134

A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation.

Question 135

Express preemption clauses will be ____ construed.

Answer 135

narrowly

Question 136

If a state law conflicts with federal law requirements, such that it would be ____, the state law will be held to be impliedly preempted.

Answer 136

impossible to follow both laws

Question 137

If a state or local law prevents____, it will also be held to be impliedly preempted. This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law.

Answer 137

achievement of a federal objective

Question 138

A valid federal law may impliedly “occupy”
the ____, thus barring any state or local law even if the state or local law is ____

Answer 138

entire field; nonconflicting.

–> The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field (for example, if federal laws are comprehensive or an agency was created to oversee the area, preemption may be found).

Question 139

In all preemption cases, but especially in cases involving a field traditionally within ____, courts will start with the presumption that the historic state police powers are not to be superseded unless that was the ____ of Congress

Answer 139

the power of the states (for example, regulations involving health, safety, or welfare); clear and manifest purpose

Question 140

The Interstate Compact Clause concerns agreements between states. If the agreement increases the states’ power at the expense of federal power, ____ is required.

Answer 140

congressional approval

Question 141

The Article IV Interstate Privileges and Immunities Clause prohibits discrimination by a state against _____

Answer 141

nonresidents.

Question 142

Corporations and aliens are ____ by the Privileges and Immunities Clause.

Answer 142

not protected

Question 143

The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either ____

Answer 143

important commercial activities (such
as the pursuit of a livelihood) or fundamental rights

Question 144

The Interstate Privileges and Immunities Clause applies only if the discrimination is ____ in nature.

Answer 144

intentionally protectionist

Question 145

If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is _____

Answer 145

necessary to achieve an important government purpose and there are no less restrictive means available

Question 146

States may not deny their citizens the privileges or immunities of _____. ____ are not protected by this Clause.

Answer 146

national citizenship (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel)

Corporations

Question 147

If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce.

To do so, however, the state or local government must not ____

Answer 147

discriminate against or unduly burden interstate commerce. (dormant commerce clause)

Question 148

State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always
____

Answer 148

invalid

Question 149

A discriminatory state or local law may be valid if it is ____

Answer 149

necessary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.

Question 150

If a nondiscriminatory state law (that is, a law that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid unless ____.

Answer 150

the burden outweighs the promotion of a legitimate local interest (+The court will consider whether less restrictive alternatives are available.)

Example: An Iowa statute banning trucks over 60 feet was held to be invalid because the state showed no significant evidence of
increased safety and the burden on commerce was substantial.

Question 151

A different standard may apply to statutes adopted by the state of incorporation regulating the ____. Because of the states’ long history of regulating the internal
governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be ____

Answer 151

internal governance of a corporation; upheld

Question 152

Congress may ____ state regulations that would otherwise violate the (Dormant) Commerce Clause. Likewise, Congress
may ____ state regulations that could otherwise be upheld under the Commerce Clause.

Answer 152

permit; prohibit

Question 153

A state or local government may prefer its ____ in receiving benefits from government programs or in dealing with government-owned businesses (for example, when hiring labor, buying or selling products, or giving subsidies). However, once a state sells state-owned resources, it cannot ____

Answer 153

own citizens; control what happens to the resource after that.

Question 154

The Supreme Court applies a more lenient standard when a law favors government action that involves the performance of a _____ (such as waste disposal).

Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.

Answer 154

traditional government function

Question 155

If a state regulation is discriminatory, it will be invalid unless:

Answer 155

• It furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives OR
• The state is a market participant
• Congress has approved that kind of discrimination (and that is constitutional = CC); or
• It involves government action regarding the performance of a traditional
  government function

Question 156

If a state regulation does not discriminate but burdens interstate commerce it will be invalid if

Answer 156

the burden on commerce outweighs the state’s interest.

Question 157

Discriminatory state laws may violate

Answer 157

the dormant commerce clause, the
Privileges and Immunities Clause, or the Equal Protection Clause.

Question 158

Privileges and Immunities Clause does not apply where there is no ____.

Answer 158

discrimination (undue burden doesn’t trigger P&I)

Question 159

Corproations can only claim protection under the ____ clause and not the ____ clause.

Answer 159

commerce, P&I

Question 160

Given in the ____ Amendment, state governments have wide latitude over the importation of liquor and the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause._

Answer 160

Twenty-First; Commerce Clause.

Question 161

Liquor in interstate commerce is subject to the ____

Answer 161

Commerce Clause.

Question 162

Congress may regulate economic transactions involving liquor through the federal commerce power (for example, antitrust laws) or by ____

Answer 162

conditioning grants of money (for example, highway funds given only to states with minimum drinking age of 21).

Question 163

With a few minor exceptions, the power to regulate ____ commerce lies exclusively with Congress.

Answer 163

foreign

Question 164

The same general considerations that apply to state regulation of commerce (see supra) apply to state ___ of commerce.

Answer 164

taxation

Question 165

Unless authorized by Congress, state taxes that discriminate against ____commerce (for example, tax on out-of-state businesses higher than tax on in-state businesses) violate the Commerce Clause (Note that these taxes may also violate other constitutional provisions (for example, the Privileges and Immunities Clause of Article IV or the Equal Protection Clause).

Answer 165

interstate

Question 166

A nondiscriminatory state tax will be valid if the following requirements are
met:

Answer 166

1. Substantial Nexus: exists when
   a business avails itself of the privilege of doing business in the state. A physical presence in the state is not necessary.
2. Fair Apportionment: fairly apportioned according to a rational formula. However, the taxpayer has the burden of proving unfair apportionment.
3. Fair Relationship: must be fairly related to the services or benefits provided by the state.

Question 167

Use taxes are imposed on goods purchased outside the state but used within it. They are ____

Answer 167

valid unless higher than sales tax.

Question 168

An interstate seller may be required to collect a use tax if the seller has a ____ with the taxing state (for example, maintains
offices in the taxing state).

Answer 168

substantial nexus (A physical presence is not required)

Question 169

Commodities in interstate transit (such as widgets in a shipping container on a truck or train) are ____ from ad valorem property state taxation.

Answer 169

entirely exempt

Question 170

Interstate transportation begins when the cargo

Answer 170

(1) is delivered to an interstate carrier or
(2) actually starts its interstate journey.

–> A break in the continuity of transit does not destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment.

Question 171

The interstate shipment usually ends when ____; after that, the goods are subject to local tax.

Answer 171

the cargo reaches its destination

Question 172

The validity of ad valorem property taxes on instrumentalities of
commerce (for example, trucks or airplanes) depends on

Answer 172

(1) whether the instrumentality has acquired a “taxable situs” in the taxing state
(that is, whether there are sufficient “contacts” with the taxing state
to justify the tax) and
(2) whether the value of the instrumentality has been properly apportioned according to the amount of the “contacts” with each taxing state.

Question 173

An instrumentality has a taxable situs in a state if it ____ from the state

Answer 173

receives benefits or protection

Question 174

A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the ____ of the instrumentality in the taxing state.

Answer 174

average physical presence

Question 175

The taxpayer’s domiciliary state can tax the full value of instrumentalities used in interstate commerce unless the taxpayer can prove that ____

Answer 175

a defined part of the taxed item has acquired a “taxable situs” elsewhere.

Question 176

Ao-called “doing business” taxes are ____

Answer 176

generally permitted

–> Such taxes may be measured by a flat amount or by a proportional rate based on contact with the taxing state.

Question 177

Basic requirements of doing business taxes:

Answer 177

(1) the activity taxed must have a substantial nexus to the taxing state;
(2) the tax must be fairly apportioned;
(3) the tax must not discriminate against interstate commerce; and
(4) the tax must fairly relate to services provided by the state.

Question 178

Sales taxes are generally valid if

Answer 178

there is a substantial nexus to the taxing state and the tax is properly apportioned (if more than one state can tax the sale).

Question 179

Ad Valorem Tax on commodities are valid only if

Answer 179

property is no longer in interstate commerce.

Question 180

The ____ Clause and the Commerce Clause greatly limit the states’ power to tax foreign commerce.

Answer 180

Import-Export

Question 181

The United States may sue a state without ____

Answer 181

its consent.

Question 182

Public policy forbids a state from suing the United States without its ____.

Answer 182

consent (Congress can pass legislation that permits the United States to be sued by a state in given situations).

Question 183

A suit against a federal officer is deemed to be brought against the United States itself if the judgment sought would be ____ and
therefore is barred by sovereign immunity.

Answer 183

satisfied out of the public treasury or would interfere with public administration

Question 184

Specific relief against an officer as an individual will be granted if the officer acted ____

Answer 184

ultra vires (beyond his authority).

Question 185

One state may sue another state without ____. The Supreme Court has exclusive original jurisdiction.

Answer 185

the latter’s consent

Question 186

By virtue of the ____ Clause, certain state court judgments must be recognized in other states.

Answer 186

Full Faith and Credit

Question 187

The Full Faith and Credit applies only if:

Answer 187

• The court that rendered the judgment had jurisdiction over the parties and the subject matter (if the issue of jurisdiction was litigated in one state, that ruling must be recognized in other states
  too)
• The judgment was on the merits AND
• The judgment is final

Question 188

Other than the Thirteenth Amendment ban on slavery (see below), the Constitution regulates only ____

Answer 188

government action, not private action.

Question 189

By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits ____ power. However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the ____.

Answer 189

federal; states

Question 190

Exceptions to incorporation of the bill or rights to the states through the 14A.

Answer 190

(1) the Fifth Amendment’s prohibition of criminal trials without a grand jury indictment and
(2) the Seventh Amendment’s right to a jury trial in civil cases.

Question 191

The Thirteenth Amendment prohibits slavery and involuntary servitude, which the Court has defined as ____

Answer 191

compulsion of labor through the use or threat of physical or legal coercion.

Question 192

Under the Thirteenth Amendment’s Enforcement Clause, Congress can prohibit racially discriminatory action by ____

Answer 192

anyone (the government or a private citizen).

Question 193

The Fourteenth Amendment prevents states from depriving any person of ____

Answer 193

life, liberty, or property without due process and equal protection of law

Question 194

The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to _____

Answer 194

vote on account of race or color

Question 195

Section 5 of the Fourteenth Amendment gives Congress the power to adopt ____ to enforce the rights and guarantees provided by the Fourteenth Amendment.

Answer 195

appropriate legislation

Question 196

Under Section 5 of the 14A, Congress may not ____. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is ____ (that is, narrowly
tailored) to solving the identified violation.

Answer 196

expand existing constitutional rights or create new ones (it may only enact laws to prevent or remedy violations of rights already recognized by the courts)

congruent and proportional

Question 197

Congress has inherent power to protect rights of ____ under Section 5 of the Fourteenth Amendment

Answer 197

citizenship (that is, to enforce the guarantee of the “privileges or immunities of citizens of the United States”).

Question 198

State action can be found in actions of seemingly private individuals who:

Answer 198

• Perform exclusive public functions, or
• Have significant state involvement

Question 199

Activities that are so ____ prerogative of the state are state action no matter who performs them.

Answer 199

traditionally the exclusive

Question 200

State action also exists wherever a state ____ facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is ____ between the state and private party.

Answer 200

affirmatively; sufficient entwinement

Question 201

There is state action even where the state actor is acting ____

Answer 201

contrary to policy

Question 202

____ schemes are generally not significant state involvement (and thus state action)

Answer 202

Licensing

Question 203

The mere fact that an organization has some members that are government actors ____

Answer 203

doesn’t convert the org to state action

Question 204

States are not constitutionally required to outlaw discrimination. They are only forbidden to ____

Answer 204

facilitate, encourage, or authorize it.

Question 205

Standards of review are used by the Court when reviewing challenges to governmental acts under the guarantees of
substantive due process and equal protection, as well as the First
Amendment rights:

Answer 205

1. Rational Basis
2. Intermediate Scrutiny
3. Strict Scrutiny

Question 206

What laws are reviewed on a rational basis standard

Answer 206

Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard

Question 207

Rational Basis - Standard

Answer 207

Law is upheld if it is rationally related to a legitimate government purpose.

–> This is a very easy standard to meet; therefore the law is usually valid—unless it is arbitrary or irrational.

Question 208

Rational Basis - BOP

Answer 208

The person challenging the law has the burden of proof.

Question 209

Regulations involving ____ are reviewed under the intermediate scrutiny standard

Answer 209

quasi-suspect classifications (that is, gender and legitimacy)

Question 210

Intermediate Scrutiny - Standard

Answer 210

The law is upheld if it is substantially related to an important government purpose.

Question 211

Intermediate Scrutiny - BOP

Answer 211

It is unclear who has the burden of proof under intermediate scrutiny. Usually, courts place the burden on the government.

Question 212

Regulations affecting ____ or involving ____ are reviewed under the strict scrutiny standard

Answer 212

fundamental rights (for example, interstate travel, voting, and First Amendment rights); suspect classifications (that is, race, national origin, and alienage)

Question 213

Strict Scrutiny - Standard

Answer 213

The law is upheld if it is necessary (that is, the least restrictive means) to achieve a compelling government purpose.

–> This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated—
especially if there is a less burdensome alternative to achieve the government’s goal.

Question 214

Strict Scrutiny - BOP

Answer 214

The government has the burden of proof under strict scrutiny.

Question 215

Government ____ is insufficient to state a procedural due process claim. Instead, there generally must be an ____ government action.

Answer 215

negligence; intentional or reckless

Question 216

The Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment provide that a person has a right to a ____ when the government deprives the person of life, liberty, or property

Answer 216

fair process (procedural due process)

Question 217

A deprivation of liberty occurs if a person:

Answer 217

• Loses significant freedom of action, or
• Is denied a freedom provided by the Constitution or a statute

Question 218

Injury to ____ itself is not a deprivation of liberty (or property).

Answer 218

reputation

Question 219

“Property” includes not only personal and real property (whether it’s tangible or intangible), but also government benefits to which there is an entitlement (that is, a ____) under state or federal law.

Answer 219

reasonable expectation of continued
receipt (An abstract need or desire for (or a unilateral expectation of) a benefit is not enough.)

Question 220

Property interests under the DPC include welfare benefits, public education, government licenses, and tenured government employment or term employment for the duration of the term, but not ____

Answer 220

at-will employment.

Question 221

Process Required: Commitment to Mental Institution

Answer 221

• Adults: Prior notice and prior evidentiary hearing (except in emergency).
• Children: Prior screening by
  “neutral factfinder.” (Parental consent
  alone insufficient.)

Question 222

Process Required: Welfare Benefits

Answer 222

Prior notice and prior evidentiary hearing.

Question 223

Process Required: Disability Benefits

Answer 223

Prior notice and opportunity to respond, and subsequent evidentiary hearing.

Question 224

Process Required: Public Employment
(tenured or termination only “for cause”)

Answer 224

Generally, prior notice and opportunity to respond, and subsequent evidentiary hearing.

Question 225

Process Required: Public Education (disciplinary suspension or academic dismissal)

Answer 225

Public Education (disciplinary suspension or academic dismissal)

Question 226

Process Required: Driver’s License Suspension

Answer 226

Prior evidentiary hearing. Exception: Breathalyzer test suspension statutes

Question 227

Process Required: Termination of Parent’s Custody Rights

Answer 227

Prior notice and prior evidentiary hearing.
Clear and convincing evidence required.

Question 228

Process Required: Civil Forfeitures

Answer 228

Prior notice and evidentiary hearing for real property; subsequent notice and hearing for personal property.

Question 229

Process Required: Detention of Citizen Enemy Combatants

Answer 229

Subsequent notice and a meaningful opportunity to contest the factual basis for detention before a neutral decisionmaker.

Question 230

Procedural due process requires:

Answer 230

• Notice
• Opportunity to be heard AND
• A neutral decisionmaker

Question 231

Notice for DPC must be ____

Answer 231

reasonably calculated to inform the person of deprivation.

Question 232

The type and extent of the DPC hearing are determined by a balancing test that weighs:

Answer 232

• The importance of the interest to the individual and
• The value of specific procedural safeguards to that interest (that is, the risk of error from the current procedures used and the benefits of additional procedures),

AGAINST:
- The government interest in fiscal and administrative efficiency (that is, the burden on the government from using additional procedures)

Question 233

Typically, a claimant should be given a ____ hearing, unless that would be impracticable.

Answer 233

pre-deprivation

Question 234

The decisionmaker of a DPC hearing cannot have any ____ or a ____

Answer 234

actual bias (for example, having a financial interest in the decision or a relative that is a party to the case); serious risk of actual bias.

Question 235

As a general rule, due process rights are, presumably, subject to waiver if the waiver is _____

Answer 235

voluntary and made knowingly.

Question 236

Government fees (for example, court filing fees) must be waived when imposition of a fee would deny a ____ to the
indigent. However, fees can be imposed when ____ rights are involved (for example, fees for a bankruptcy discharge or review
of welfare termination).

Answer 236

fundamental right; nonfundamental

Question 237

Substantive due process guarantees that laws will be ____

Answer 237

reasonable and not arbitrary.

Question 238

Fundamental rights subject to strict scrutiny include:

Answer 238

• All First Amendment rights
• The right to interstate travel
• Privacy-related rights
• Voting

Question 239

Fundamental rights can be enumerated in the Constitution or unenumerated. Whether an unenumerated right is fundamental depends on whether it is ____

Answer 239

deeply rooted in the nation’s history and
tradition and essential to the concept of ordered liberty.

Question 240

Both substantive due process and equal protection guarantees require the Court to review the ____ of a law rather than the procedures employed.

Answer 240

substance

Question 241

If a law limits the rights of ____ persons to engage in some activity, on the MBE it usually is a [substantive] due process question.

Answer 241

all

Question 242

If a law treats ____ differently from others, on the MBE it usually is an equal protection problem.

Answer 242

a person or class of persons but analyze both!)

Question 243

The Supreme Court has recognized (at least in relation to property regulation) that an equal protection claim can be brought not only for discrimination against a group, but also for arbitrary treatment of a
____

Answer 243

single individual—a class of one

Question 244

The Court has held that an at-will government employee who claims to be a victim of arbitrary discrimination cannot use the ____ to make an equal protection claim.

Answer 244

class of one theory

Question 245

Privacy related rights subject to strict scrutiny

Answer 245

marriage, procreation, contraception, and childrearing

Question 246

A statute restricting the rights of prison inmates to marry will be upheld if ____

Answer 246

reasonably related to legitimate penological interests (can’t outright ban!)

Question 247

Regulations that don’t ____ the right to marry, such as minimum age requirements, are subject to rational basis review.

Answer 247

substantially burden

Question 248

Parental rights are fundamental rights. They include the”

Answer 248

companionship, care, custody, and upbringing of children.

Question 249

There’s a fundamental right for ____—to live together. However, this right does not extend to ____ people.

Answer 249

family members—even extended ones; unrelated

Question 250

There is no longer a fundamental right to an abortion under the federal
Constitution, the matter is left to the states to legislate.

Laws restricting abortions are now entitled to a “____” under rational basis review.

Answer 250

strong presumption of validity

Question 251

The right to privacy includes freedom to read obscene material in one’s home (except for child pornography), but not the right to _____

Answer 251

sell, purchase, or transport such material.

Question 252

The state may reasonably gather and distribute information about its citizens. Thus, there is no privacy right to prohibit the accumulation of ____ for whom dangerous drugs are prescribed.

Answer 252

names and addresses of patients

Question 253

Re: Interstate Travel, An individual has a fundamental right:

Answer 253

(1) to travel from state to state, and
(2) to be treated equally after moving into a new state.
-> Note though that not every restriction on the right to cross state lines is an impairment of the right to travel.

Question 254

Tolls for ____ a state would be invalid (but tolls for using a state’s roads are fine).

Answer 254

entering or leaving

Question 255

Increased penalties for a parent abandoning their children and leaving the state are ____

Answer 255

valid.

Question 256

International travel is ____ a fundamental right. It is, however, protected from ____ by the Fifth Amendment Due Process Clause; the rational basis standard applies.

Answer 256

not; arbitrary federal interference

Question 257

One year residency requirements to receive full welfare benefits, receive state-subsidized medical care, to vote in a state are

Answer 257

invalid

Question 258

A thirty-day residency requirement to vote in a state is

Answer 258

valid

Question 259

A one year residency requirement to get divorced is

Answer 259

valid

Question 260

Restrictions on the right to vote, other than on the basis of ____, are invalid unless they can pass strict scrutiny.

Answer 260

residence, age, and citizenship

Question 261

Conditioning the right to vote or hold office on ownership of property is usually ____.

Answer 261

invalid

Question 262

A state may require voters to show a ____

Answer 262

government-issued voter ID.

Question 263

Poll taxes are _____

Answer 263

unconstitutional.

Question 264

States can require early registration to vote in ____. However, states can’t prohibit political parties from opening their primary elections to ____

Answer 264

primaries; anyone, whether or not registered with the party.

Question 265

The “one person, one vote” principle applies whenever any level of government decides to select representatives to a governmental body by popular election from ____

Answer 265

individual districts.

Question 266

For state and local elections, the populations of voting districts must be ____

Answer 266

substantially equal.
-> That is, the variance in the number
of persons included within districts can’t be unjustifiably large, but the districts don’t need to be within a few percentage points of each other.

Question 267

Where there is a deviation from one person one vote in a state/local election a state must show that a deviation from mathematical equality is ____

Answer 267

reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions)

Question 268

Where there is a deviation from one person one vote in a state/local election a __% variance is presumptively valid and a __% has been upheld in light of the state’s
interest in preserving political subdivisions and communities and in light of geographic factors.

Answer 268

10; 16

Question 269

States must use ____ when creating congressional districts within the state.

Answer 269

almost exact mathematical equality (even a
0.7% variance was invalidated).

Question 270

The exact mathematical equality requirement doesn’t apply where ____ apportions representatives among the states; Congress’s good faith method for apportioning representatives gets more deference and is not subject to a precise mathematical formula, as are state plans.

Answer 270

Congress

Question 271

When states measure the equality of their districts, they don’t have to count only persons ____. Counting the ____ is sufficient and this best serves the “one person, one vote” principle.

Answer 271

eligible to vote; total
population

Question 272

The apportionment requirement is inapplicable to officials who are ____

Answer 272

appointed or elected at large.

Question 273

The one person, one vote principle doesn’t apply to elections of officials who do not exercise “____”
but rather deal with matters of special interest in the community

Answer 273

normal governmental authority

Question 274

____ cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny.

Answer 274

Race (and presumably other suspect classifications)

Question 275

Political gerrymandering (that is, drawing district lines to achieve certain political results, which sometimes results in districts with the contours of a mythical salamander), is a ____

Answer 275

non-justiciable political question.

Question 276

States can’t charge candidates a fee that makes it impossible for _____

Answer 276

indigents to run for office.

Question 277

A ballot access (ability to be candidate) regulation must be a ____. A state may
require candidates to show ____ to have their names placed on the ballot.

Answer 277

reasonable, nondiscriminatory means of promoting important state interests

reasonable support

Question 278

The government can allocate more public funds to the ____ parties than to “minor” parties for political campaigns.

Answer 278

two “major”

Question 279

The Second Amendment protects the right of individuals to bear arms for self-defense. This includes the right to keep a handgun ___ and the right to ____

Answer 279

at home; carry a handgun in public.

Question 280

For a gun permit law to be constitutional, the criteria must be clear; a law that gives an official ____ in granting permits is unconstitutional.

Answer 280

discretion

Question 281

A state may not require someone who is applying for a concealed carry permit to show they ____; such a
requirement is unconstitutional.

Answer 281

need it for safety

Question 282

Standard of review for gun regulations

Answer 282

The government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation.
-> Simply positing that the regulation promotes an important interest is not sufficient.

Question 283

Bans on firearms in sensitive places—such as _____ —are constitutional based on historical tradition.

There is no analogous historical tradition to justify general bans on handguns in the home or in public.

Answer 283

legislatures, courtrooms, and schools

Question 284

A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is ____.

Answer 284

forbidden or required
-> A regulation that fails to give fair notice violates the Due Process Clause.

Question 285

The state has no legitimate interest in making it a crime for fully consenting adults to engage in _____

Answer 285

private intimate sexual conduct (for example, sodomy) that is not commercial in nature.
–> can’t even pass the rational basis test because of the lack of a legitimate state interest!

Question 286

The right of a mentally competent adult to refuse ____ is a part of an individual’s “liberty” under the Fifth and Fourteenth Amendment Due Process Clauses.

Answer 286

medical treatment (although it is unclear what standard of review applies)

Question 287

There is no fundamental right to physician-assisted ____

Answer 287

suicide.

Question 288

States can compel vaccination against ____

Answer 288

contagious diseases

Question 289

An equal protection claim arises whenever the government ____

Answer 289

treats people differently from others

Question 290

The Equal Protection Clause of the Fourteenth Amendment is limited to ____ action. While the Equal Protection Clause is not applicable to the federal government, the _____ contains an equal protection component.

Answer 290

state; Due Process Clause of the Fifth Amendment

Question 291

For strict or intermediate scrutiny to be applied, there must be ____ on the part of the government to discriminate.

Answer 291

intent

Question 292

Intent for the EPC may be show by:

Answer 292

1 - A law that is discriminatory on its face (that is, facial discrimination),
2 - A discriminatory application of a facially neutral law, or
3 - A facially neutral law with a disparate impact on a protected class of people (such as minorities)

++ 2/3: A discriminatory application or effect alone is not enough. The legislature’s discriminatory intent must be shown (for example, by evidence of a history of discrimination).

Question 293

Classifications are suspect if they are based on ____

Answer 293

race, national origin, or (at the state and local levels) alienage.

Question 294

Classifications based on race or national origin are judged by a ____ standard.

Answer 294

strict scrutiny

Question 295

____ segregation violates the Constitution. If school systems and attendance zones are established in a racially neutral manner, there is ____

Answer 295

Intentional; no violation (there is no violation if housing patterns result in racial imbalance in schools without intent)

Question 296

If it’s proven that a school board has engaged in the racial districting of schools, the board must take steps to _____. If the school refuses to do so, a court can order the school district to take all appropriate steps to eliminate the discrimination, but the order cannot go beyond the purpose of _____

Answer 296

eliminate the effects of that discrimination (for example, busing students); remedying the past effects of segregation

Question 297

The Supreme Court has found that assigning students to a public primary or secondary school on the basis of race solely to promote ____, as opposed to remedying past intentional segregation, does not satisfy strict scrutiny.

Answer 297

diversity

Question 298

Government action—whether by federal, state, or local governmental bodies—that ____ racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.

Answer 298

favors

Question 299

The government has a compelling interest in remedying past governmental discrimination against a racial or ethnic minority. The past discrimination must have been ____. A race based plan cannot be used to remedy general past ____

Answer 299

persistent and readily identifiable; “societal discrimination.”

Question 300

Even where the government hasn’t engaged in past discrimination, it ____ have a compelling interest in affirmative action in limited contexts. However, remember that the governmental action must be narrowly tailored to that interest.

Answer 300

may

Question 301

In 2023, the Court brought the rule for universities in line with the rule for lower public schools, stating that having a ____ is not an interest compelling enough to overcome strict scrutiny.

Answer 301

diverse student body

Question 302

If a plaintiff can show that a redistricting plan was drawn up predominately on the basis of _____, strict scrutiny is triggered
and the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling state interest.

Answer 302

racial considerations

Question 303

Because of Congress’s plenary power over aliens, federal alienage classifications are ____ to strict scrutiny.

Answer 303

not subject (Such classifications are valid if they are not arbitrary and unreasonable.)

Question 304

Generally, ____ laws on alienage (that is, citizenship status) are suspect classifications subject to strict scrutiny.

Answer 304

state/local

Question 305

If a law discriminates against alien participation in state government (for example, voting, jury service, elective office), the _____ standard is applied.

Answer 305

rational basis

Question 306

The ____ standard is used for state and local laws limiting certain non-elective offices involving important public policy (for example, police officers, probation officers, and primary and secondary schoolteachers).

Answer 306

rational basis

Question 307

_____ aliens are not a suspect classification. Thus, state laws regarding them are subject to a “rational basis” standard.

Answer 307

Undocumented

Question 308

Denial of _____ to undocumented alien children
has been held to be invalid under amorphous rational basis/intermediate scrutiny standard.

Answer 308

free public education

Question 309

Classifications based on ____ are “quasi-suspect.”

Answer 309

legitimacy and gender

Question 310

Gender classifications based on ____ are generally invalid, whereas those designed to remedy past discrimination are more likely to be upheld under intermediate scrutiny.

Answer 310

role stereotypes

Question 311

For gender classifications under intermediate scrutiny the government bears the burden of showing an _____ for the discrimination.

Answer 311

“exceedingly persuasive justification”

Question 312

Laws that have been found valid under gender intermediate scrutiny:

Answer 312

• Discriminatory statutory rape laws
• All-male draft
• The Social Security Administration’s formula entitles women to greater benefits to remedy a long history of pay discrimination

Question 313

Laws that have been found invalid under gender intermediate scrutiny:

Answer 313

• Gender-based death benefits
• Gender-based peremptory strikes
• Alimony for women only
• Discriminatory minimum drinking age (women at 18, men at 21)

Question 314

Distinctions drawn between _____ children are also reviewed under the intermediate scrutiny standard

Answer 314

marital and nonmarital

Question 315

A law allowing nonmarital children to recover from their fathers’ estates only if parenthood is established before the father’s death is ____, becuase it ____

Answer 315

valid; promotes the efficient disposition of property at death (an important government interest).

Question 316

All other classifications are evaluated under the rational basis standard. These include ____ classifications.

Answer 316

age, disability, and wealth

Question 317

If the government’s only interest in denying a benefit to or imposing a burden on a group of people is _____, the classification will not meet rational basis review.

Answer 317

a dislike of them

Question 318

Summary of what is subject to strict scrutiny:

Answer 318

Suspect classifications: race, national origin, and sometimes alienage

Fundamental rights: interstate travel, privacy, voting, first amendment rights

Question 319

The Fifth Amendment (applicable to the states via the Fourteenth Amendment) provides that private property may only be taken

Answer 319

(1) for public use and (2) the government must pay just compensation

Question 320

Property subject to the Taking Clause includes ____

Answer 320

personal property, real property, and certain intangibles (for example, interest on
attorney trust accounts and trade secrets, but not welfare benefits).

Question 321

A taking (vs a regulation not requiring compensation) will be found if there is:

Answer 321

• A confiscation of a person’s property or
• A permanent or regular physical occupation of a person’s property by the government

Question 322

Temporary occupations by the government may also be a taking, depending on factors like ____

Answer 322

the degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.

Question 323

Municipalities often attempt to condition building or development permits on a landowner’s (1) conveying title to part of the
property to the government (for example, to be used as streets), or (2) granting the public an easement to access the property. These conditions constitute a taking unless:

Answer 323

(1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and (2) the adverse impact of
the proposed development is roughly proportional to the loss
caused to the property owner from the forced transfer.

Question 324

A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to ____

Answer 324

a public emergency, such as war.

Question 325

Types of regulatory taking analysis

Answer 325

1. Denial of All Economic Value of Land—Taking (BLR)
2. Decreasing Economic Value—Balancing Test

Question 326

If a government regulation denies a landowner of ____ of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.

Answer 326

all economically viable use

Question 327

____ an owner of all economic use of property
does not constitute a per se taking. Instead, the Court will carefully examine and weigh all the relevant circumstances—the planners’ good faith, the reasonable expectations of the owners, the length of the delay, the delay’s actual effect on the value of the property, and so on—to determine whether “____” require just compensation.

Answer 327

Temporarily denying; fairness and justice

Question 328

Generally, regulations that merely decrease the value of property (for example, prohibiting the most beneficial use) do not amount to a taking if they leave an economically viable use for the property. BUT the Court will consider:

Answer 328

(1) the government interests sought to be promoted;
(2) the diminution in value to the owner; and
(3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

Question 329

If the government’s action is _____ (for example, for health, welfare, safety, economic, or aesthetic reasons), the public use requirement (of the takings clause) is satisfied.

Answer 329

rationally related to a legitimate public purpose (liberally construed)

Question 330

Authorized takings by private enterprises are included if they _____

Answer 330

work to the public advantage (for example, railroads and public utilities).

Question 331

Just compensation is measured by the ____ of the property taken at the time of ____, and it’s based on the loss to the owner. Increases in value to the owner’s remaining property as a result of the taking are ____

Answer 331

fair market value; the taking; not considered.

Question 332

When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation. If the court determines that the government action amounted to a taking, the government will be required to either:

Answer 332

• Pay the property owner just compensation for the property, or
• Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (that is, temporary taking damages).

Question 333

The Contract Clause limits the ability of state and local governments to enact laws that ____. It doesn’t affect contracts ____

Answer 333

retroactively impair contract rights; not yet made.

Question 334

There’s no comparable contract clause applicable to the ____ government, but ____ contract impairment would violate the Fifth Amendment Due Process Clause.

Answer 334

federal; flagrant

Question 335

Legislation that substantially impairs an existing private contract is invalid unless the legislation:

Answer 335

• Serves an important and legitimate public interest, and
• Is a reasonable and narrowly tailored means of promoting that interest

Question 336

Types of scrutiny under the contract clause:

Answer 336

• Private Contracts—Intermediate Scrutiny
• Public Contracts—Heightened Scrutiny

Question 337

Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation ____

Answer 337

reduces the contractual burdens on the state.

Question 338

Neither the states nor the federal government may pass an ex post facto law, which is a law that ____ in a substantially prejudicial manner for the purpose of punishing a person for some past activity

Answer 338

retroactively alters criminal offenses or punishments

Question 339

A statute retroactively alters a law in a substantially prejudicial manner if it:

Answer 339

• Makes criminal an act that was innocent when done,
• Imposes a greater punishment for an act than was imposed for the act when it was done, or
• Reduces the evidence required to convict a person of a crime from what was required when the act was committed

Question 340

Note that the Due Process Clauses of the Fifth and Fourteenth Amendments similarly prohibit ___ from retroactively interpreting criminal laws in an unexpected and indefensible way.

Answer 340

courts

Question 341

The Ex Post Facto Clauses apply only to ____ cases

Answer 341

criminal

-> An answer choice that attempts to apply these prohibitions in a civil case (for example, regarding a denial of a professional license) is wrong.

Question 342

____ are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state/local governments are prohibited from passing these bills.

Answer 342

Bills of attainder

Question 343

If a retroactive law does not violate the Contracts, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the ___.

Answer 343

Due Process Clause

-> If the retroactive law doesn’t substantially burden a fundamental right, it only needs to be rationally related to a legitimate government interest.

Question 344

The First Amendment prohibits Congress from abridging the freedoms of ____

Answer 344

speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion

Question 345

Speech includes ___

Answer 345

words, symbols, and expressive conduct.

Question 346

Expressive conduct is any kind of conduct that is either ____, or conduct that is:

Answer 346

inherently expressive

Intended to convey a message, and Reasonably likely to be perceived as conveying a message

Question 347

Unprotected speech include:

Answer 347

• Incitement
• Fighting words (including true threats)
• Obscenity
• Some commercial speech

Question 348

Lesser protected speech includes:

Answer 348

• Some commercial speech
• Defamatory speech

Question 349

Speech can be censored as incitement if it is

Answer 349

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

Question 350

Speech can be censored if it constitutes fighting words which are:

Answer 350

personally abusive words that are likely to incite immediate physical retaliation in an average person
-> Words that are merely annoying won’t do.

Question 351

The First Amendment does not protect true threats, which are words that are ____

Answer 351

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

Question 352

To qualify as a true threat, the speaker must have had some ____ understanding that their threats were of a threatening nature, but a mental state of ____ is sufficient

Answer 352

subjective; recklessness (that is, the speaker is aware that others could regard the statements as threatening violence and delivers them anyway).

Question 353

Even though fighting words are unprotected, the Supreme Court won’t allow fighting words statutes that are designed to punish only ____

Answer 353

certain viewpoints

Question 354

As a practical matter, statutes that attempt to punish fighting words are usually ___

Answer 354

vague or overbroad

Question 355

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:

Answer 355

• Appeals to the prurient interest in sex, using a contemporary community standard
• Is patently offensive under contemporary community standards
  AND
• Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

Question 356

Mere ____ are not obscene

Answer 356

nudity, soft-core pornography, and “dirty words”

Question 357

Private possession of obscene material in ____ cannot be punished (except for possession of child pornography). However, the protection does not extend ____

Answer 357

the home; outside the home.

Question 358

To protect minors from exploitation, the government may prohibit the sale or distribution of ____ depictions of sexual conduct involving minors, even if the material would ____

Answer 358

visual; not be found obscene if it did not involve children.

Question 359

The government can’t bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that actually uses ____

Answer 359

young-looking adults or computer-generated images.

Question 360

The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. However, the government can’t prohibit the sale or distribution of material to adults just because ____

Answer 360

it’s inappropriate for children.

Question 361

A land use (or zoning) regulation may limit the ____ of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (for example, to protect children and unwilling adults from exposure, or to prevent neighborhood crime and decay). However, these regulations can’t ban such establishments altogether.

Answer 361

location or size

Ex: The Supreme Court upheld a city ban on adult bookstores and theaters within 1,000 feet of neighborhoods, schools, churches, and parks, which left less than 5% of the city for such speech.

Question 362

Under the Twenty-First Amendment, states have broad power to regulate intoxicating beverages. Laws relating to this power that affect free speech rights generally will not be set aside unless ____

Answer 362

they are irrational.

Question 363

If a defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus _____.

Answer 363

falsity and some degree of fault in order to recover

Question 364

If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is _____

Answer 364

actual malice.

Question 365

To show actual malice, the plaintiff must prove by ____ evidence that the alleged defamatory statement was made with:

Answer 365

clear and convincing

• Knowledge that it was false or
• Reckless disregard as to its truth or falsity

Question 366

Public officials include people:

Answer 366

(1) holding or running for elective office
(at any level), and
(2) public employees in positions of public importance (for example, prosecutor, school principal, police officer).

Question 367

Public figures are people who have:

Answer 367

(1) assumed roles of prominence in society,
(2) achieved pervasive fame and notoriety, or
(3) thrust themselves into particular public controversies to influence their resolution.

Question 368

Matters of public concern are issues ____. The courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at ____

Answer 368

important to society or democracy; the content, form, and context of the publication.

Question 369

If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover ____ if the plaintiff only shows negligence. To recover _____ they need to show actual malice.

Answer 369

actual damages; punitive damages or presumed damages

Question 370

If the plaintiff is a private figure suing on a matter of private concern, then the First Amendment is ____

Answer 370

not involved

Question 371

The Supreme Court has required proof of ____ for recovery under the torts of intentional infliction of emotional distress and other
torts (for example, invasion of the right to privacy) where the plaintiff is a public figure or official, or where the speech is on a matter of public concern.

Answer 371

actual malice

Ex: The Supreme Court barred recovery for intentional infliction of emotional distress and other torts against the Westboro Baptist Church for picketing at a fallen soldier’s funeral, because the plaintiff couldn’t show actual malice.

Question 372

Commercial speech (that is, advertisements, promotions of products and services, brand marketing) is not protected if it is

Answer 372

(1) false
(2) misleading, or
(3) about illegal products or services.

Question 373

Any other regulation of commercial speech (that isn’t false, misleading, illegal) will be upheld only if it:

Answer 373

• Serves a substantial government interest,
• Directly advances that interest, and
• Is narrowly tailored to serve that interest (not least restrictive = there just needs to be a reasonable fit)

Question 374

Complete bans on truthful advertisement of lawful products are ____ to be upheld due to a lack of a legitimate government interest.

Answer 374

very unlikely

Question 375

The government may require commercial advertisers to make disclosures if the disclosures are ______

Answer 375

not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

Question 376

Speech and assembly regulations can generally be categorized as either ____

Answer 376

content-based or content-neutral.

Question 377

Content-based regulations are subject to ____, and they are presumptively _____

Answer 377

strict scrutiny; unconstitutional (unless they fall within one of the categories of unprotected speech, like obscenity).

Question 378

A regulation is content-based if it _____

Answer 378

restricts speech based on the subject matter or viewpoint of the speech.

Question 379

Content-neutral restrictions on speech are both ____

Answer 379

subject matter-neutral and viewpoint-neutral

Question 380

Content-neutral restrictions on speech generally are subject to ___ scrutiny that is, they must advance important interests unrelated to the suppression of speech and must not _____

Answer 380

intermediate; burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.

Question 381

Oftentimes content neutral regulations are in the form of ____ restrictions

Answer 381

time, place, and manner (in other words, restrictions on the conduct related to speech).

Question 382

The extent to which the government may regulate speech or expressive conduct on government property depends on whether the
property involved is a ____

Answer 382

public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Question 383

Traditional Public Forums

Answer 383

Public property that has historically been open to speech-related activities (for example, streets, sidewalks, and public parks) is called a public forum.

Question 384

Designated Public Forums

Answer 384

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (for example, a town hall open for use by social, civic, or recreation groups), is called a designated public forum.

Question 385

If the regulation on a traditional public forum or designated public forum is content-based, it will be subject to ___ scrutiny

Answer 385

strict

Question 386

If the regulation on a traditional public forum or designated public forum is content-neutral it only needs to meet ____ scrutiny, which in this context means it must:

Answer 386

intermediate

• Be narrowly tailored to serve an important government interest (however, it need not be the least restrictive means for accomplishing
  the interest) and
  +++ Leave open alternative channels of communication!!

Question 387

____ against speech in public forums are treated the same as other speech restrictions.

Answer 387

Injunctions

Question 388

Limited public forums

Answer 388

Government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications.

Question 389

Nonpublic forums

Answer 389

Government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces

Question 390

The government can regulate speech in limited and non-public forums to reserve the
forum for its intended use. In such locations, regulations are valid if they are:

Answer 390

• Viewpoint neutral and
• Reasonably related to a legitimate government purpose

Question 391

If the regulation of speech in non-public limited forums is viewpoint based, it will be subject to ____

Answer 391

strict scrutiny.

Question 392

Generally, public primary and secondary schools (that is, elementary, middle, and high schools) and school-sponsored activities in those schools are ____ forums.

Answer 392

not public
–> Therefore, speech (and association) can be reasonably regulated in them to serve the school’s educational mission

Question 393

A student’s own personal speech (that is, their expression of themselves as individuals) on campus cannot be censored absent ____

Answer 393

evidence of substantial disruption

Question 394

Exception to personal student speech on campus

Answer 394

Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption.

Question 395

When the student’s personal speech occurs off campus schools will be limited to restricting speech to ____ and other speech where ____ clearly outweigh the speech interests of students as private citizens.

Answer 395

prevent cheating, bullying, threats,

pedagogical or safety interests

Question 396

Restrictions on speech related to the school’s teaching (for example, speech by school faculty and by students as part of curricular or extracurricular activities) must be

Answer 396

reasonably related to legitimate pedagogical concerns.

Question 397

If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech
was ____

Answer 397

disruptive of the work environment

Question 398

A government employer may also punish a public employee’s speech whenever the speech is made on the job and ____, even
if the speech touches on a matter of public concern.

Answer 398

pursuant to the employee’s official duties

Question 399

If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will use a ____ test. The courts must ___

Answer 399

balancing; balance the value of the speech against the government’s interest in the efficient operation of the workplace.

Question 400

For speech on matters of private concern outside of the workplace, the test is unclear, but this speech appears protected absent a ____.

Answer 400

detrimental effect on the workplace.

Question 401

The federal government may prohibit federal executive branch employees from taking an active part in ___

Answer 401

political campaigns.

Question 402

A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to ____ employees.

Answer 402

“rank and file”

-> Such a rule deters speech within a broad
category of expression by a massive number of potential speakers and so can be justified only if the government can show that the employees’ and their potential audiences’ rights are outweighed by the necessary impact the speech would have on actual operation of the government.

Question 403

A public employee may not be hired, fired, promoted, transferred, etc., based on party ____ except as to policymaking positions, where party affiliation and views are relevant.

Answer 403

affiliation or political views

Question 404

The government can require employees to take loyalty oaths, as long as the oaths aren’t ___.

Answer 404

overbroad or vague.

Question 405

An oath for government employees can’t prohibit membership in the communist Party or require abstention from advocating overthrow of the government as an ____

Answer 405

abstract doctrine.

Question 406

An oath requiring public employees to support the Constitution and to oppose the unlawful overthrow of the government is ____; but an oath requiring public employees to support the flag is ___

Answer 406

valid; invalid.

Question 407

The government may not force disclosure of every ____ in exchange for a government employment or other benefit; it can only inquire into those activities that are relevant to the employment or benefit sought. Even here, however, a person can exercise their ____ if the disclosure would be incriminating.

Answer 407

organizational membership or affiliation; Fifth Amendment right to remain silent

Question 408

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited (for example, a ban on “opprobrious and offensive” words), it may violate the Due Process Clause. This principle is applied more strictly when ____ activity is involved.

Answer 408

First Amendment

Question 409

A regulation of speech or speech-related conduct will be invalidated as overbroad if it ____

Answer 409

punishes substantially more speech than is necessary

Question 410

An overbroad regulation is facially ____, unless a court has limited construction of the regulation so as to remove the threat to ____

Answer 410

invalid (that is, it may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected); constitutionally protected expression

Question 411

Because the invalidation remedy for overboard speech regulation is severe, the Court has noted that invalidation is only justified if the unconstitutional applications are ____. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

Answer 411

realistic (that is, not fanciful), and substantially
disproportionate to the statute’s lawful sweep

Question 412

Prior restraints are court orders or administrative systems that prevent speech ____

Answer 412

before it occurs, rather than punish it afterwards (for example, licensing systems, injunctions).

Question 413

There isn’t any special test for prior restraints—content-based ones are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny—but the government’s burden in justifying a prior restraint is ___. For exam purposes, you should ask whether there is _____ that justifies the restraint.

Answer 413

heavy; some special societal harm

Question 414

To be valid, a system for prior restraint must provide the following safeguards:

Answer 414

• The standards must be narrowly drawn, reasonable, and definite,
• The injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech), and
• There must be prompt and final judicial determination of the validity of the restraint (for example, a review of a permit denial).

Question 415

A number of other cases, especially in the area of movie censorship, require that the ____ bear the burden of proving that the speech involved is unprotected.

Answer 415

government

Question 416

If a statute gives licensing officials unbridled
discretion, it is _____

Answer 416

void on its face and speakers don’t even need to apply for a permit

Question 417

If the licensing statute includes standards (discussed above), a speaker can’t ignore the statute; they must seek a permit and if it is denied, they can ____

Answer 417

challenge the denial on First Amendment grounds.

Question 418

Obscenity cases: Seizures of a single book or film may be made with a warrant based on probable cause, although if the item is available for sale to the public, a police officer may ____. Large scale seizures must be _____

Answer 418

purchase a book or film to use as evidence without a warrant; preceded by a full-scale adversary hearing and a judicial determination of obscenity.

Question 419

Obscenity cases: The Court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. So, the Court allows the government to establish ____, as long as the procedural safeguards discussed above are followed.

Answer 419

censorship boards to screen movies before they are released

Question 420

When the government adopts a content-based prior restraint of speech, the ____ has the burden of proving that the restriction is narrowly tailored to achieve a compelling interest (strict scrutiny) or that the speech is unprotected (for example, obscenity).

Answer 420

government

Question 421

Generally, the press (along with corporations, unions, and expressive associations, like a lobbying group) has ____ than does a private citizen.

Answer 421

no greater First Amendment freedom

Question 422

Generally, the press has a right to publish ____. Content-based restrictions on the press are subject to ____.

Answer 422

truthful information regarding a matter of public concern

strict scrutiny

Question 423

The First Amendment guarantees the public and press a right to attend ____ trials. But, the right may be outweighed by an overriding interest stated in the trial judge’s findings

Answer 423

criminal (and probably civil)

Question 424

The right to attend trials includes the right to be present at ____, unless the judge makes specific findings that closure was narrowly tailored to preserve a higher value.

Answer 424

voir dire and at other pretrial proceedings

Question 425

Members of the press may be required to testify before ____

Answer 425

grand juries.

Question 426

Re: Prisons, the First Amendment doesn’t give journalists a right to ____

Answer 426

interview specified prisoners of their choice or to inspect prison grounds.

Question 427

The press and broadcasting companies can be subjected to ___ business regulations or taxes but can’t be targeted for ____ regulation or taxes. A tax or regulation impacting on the press or a subpart of the press cannot be based on the ___ of a publication absent a compelling justification.

Answer 427

general; special

content (for example, a tax exemption cannot be given to “medical journals”)

Question 428

Radio and television broadcasting may be more closely regulated than the press. The government may protect viewers and listeners
from ____ over the airwaves because of the uniquely pervasive and accessible nature of broadcasting. The government may also manage access and ownership of broadcast spectrum to promote the public interest in ____

Answer 428

indecent speech; receiving information.

Question 429

The First Amendment ____ broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer ____ time to certain individuals based on what is said/endorse on the broadcast.

Answer 429

doesn’t require; free broadcasting (for example, opponents of political candidates or views endorsed by the station, or persons who have been personally attacked in a broadcast).

Question 430

____ regulations get strict scrutiny if they are contentbased and intermediate scrutiny if they are content-neutral.

Answer 430

Cable and internet

Question 431

____ speech can’t be challenged as violating the Free Speech Clause of the First Amendment. Absent some other constitutional limitation,
such as the Establishment Clause or Equal Protection Clause, the government is ____

Answer 431

Government; generally free to voice its opinions.

Question 432

Generally, government speech and government funding of speech will be upheld if it is ____

Answer 432

rationally related to a legitimate state interest (rational basis)

Question 433

The freedom to speak includes the freedom ____ speak. Thus, the government generally can’t require people to ____

Answer 433

not to; salute the flag or display other messages with which they disagree.

Ex: A person can’t be made to display the state motto “live free or die” on a license plate.

Question 434

Although the government can’t compel a person to express a message with which the person disagrees, the government may tax people and use the revenue to express a government message even if the taxpayer ____. However, people can’t be compelled to subsidize ____ with which they disagree

Answer 434

disagrees with the message; private messages

Question 435

The government can require public university students to pay a _____ even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is ____

Answer 435

student activity fee; viewpoint neutral.

Question 436

Public accommodation laws, which prohibit certain forms of discrimination when businesses offer goods and services to the public, sweep too broadly when they ____. States cannot use public accommodation statutes to deny speakers the right to choose the ____

Answer 436

compel speech; content of their own messages.

Question 437

Spending programs may not impose conditions that limit First Amendment activities of fund recipients outside of the scope of ____

Answer 437

the spending program itself.

Question 438

When the government chooses to fund private messages (for example, college group newsletters), it generally must do so on a _____ basis.

Answer 438

viewpoint-neutral

Question 439

From a financial standpoint, the government can’t fund all artists, and choosing which it will fund inevitably must be based on ____

Answer 439

the content of the art. (and that’s an exception!)

Question 440

Determining whether speech, particularly speech that occurs on government property, is government speech, requires a holistic approach. While this review is context-driven and not mechanical, some factors that may be relevant include:

Answer 440

• The history of the expression at issue
• The public’s likely perception as to who (government or private person) is speaking
• The extent to which the government has shaped the message

Question 441

Trademark protection is not government speech, but rather it’s ____ speech. Thus, content-based restrictions on trademarks are subject to ____

Answer 441

private; strict scrutiny

Question 442

Although the freedom of association is not mentioned explicitly in the Constitution, it’s clearly implied from the rights that are explicitly
noted. Pursuant to this freedom, the government may neither:

Answer 442

prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups.

Question 443

If the right to association is ____ by a content-based regulation, strict scrutiny is triggered. But a content-neutral regulation that ____ is only subject to intermediate scrutiny.

Answer 443

substantially burdened; incidentally burdens association

Question 444

Laws regulating elections might impact on the First Amendment freedoms of speech, assembly, and association. The Court uses a ____ test to determine whether a regulation of the electoral process is valid: ___

Answer 444

balancing

If the restriction on First Amendment activity is
severe, it must be narrowly tailored to achieve a compelling interest (that is, strict scrutiny), but if the restriction is reasonable and nondiscriminatory, it generally will be upheld.

Question 445

A statute limiting election campaign contributions is subject to ____

Answer 445

intermediate scrutiny

Question 446

To prevent corruption or the appearance of corruption, laws may limit the amount of money that a person, group, or corporation can contribute to a ____. But the government may not limit the amount of money that may be spent to support or oppose a ____.

Answer 446

political candidate; ballot referendum

Question 447

The government cannot limit the aggregate amount one person or entity contributes to political candidates or committees during ____, even though it can limit the amount given to a single candidate.

Answer 447

an election
-> Aggregate limits violate the First Amendment’s protection of political speech because unlike individual contribution limits, they do not further the government’s interest in preventing quid pro quo corruption or the appearance of such, and they seriously restrict participation in the democratic process

Question 448

Laws may not limit the amount that a candidate ____ on a political campaign. Neither may the government limit the amount that a person spends to get a candidate elected, as long as the expenditures are not _____—that is, the expenditures must be independent of the candidate and not disguised contributions.

Answer 448

spends;

contributed directly to the candidate nor coordinated with those of the candidate

Question 449

Regulation of “core political speech” (for example, electioneering, distributing campaign literature), rather than regulation of the process
surrounding an election, will be upheld only if it satisfies ____

Answer 449

strict scrutiny.

Ex: Under this standard, a state may ban personal solicitation of campaign funds by judicial candidates because such a ban advances
the state’s compelling interest in preserving public confidence in the integrity of the judiciary.

Question 450

An ad concerning a political issue will be considered protected core political speech unless it’s ____

Answer 450

susceptible of no reasonable interpretation other than one as an appeal to vote for or against a particular candidate.

Question 451

Freedom of religion clauses in the first amendment

Answer 451

• Free Exercise Clause
• Establishment Clause

Question 452

The Free Exercise Clause prohibits government from ____

Answer 452

punishing someone on the basis of their religious belief or related religious status or conduct.

Question 453

For First Amendment purposes, a religious belief includes

Answer 453

the tenets of traditional religions, as well as beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents.

Question 454

When deciding whether a person holds a religious belief or even just whether the belief qualifies as religious, courts can question the ____ of a person’s belief, but not the ____ of the belief.

Answer 454

sincerity; truthfulness

Question 455

A law or other government conduct that discriminates on the basis of religion is subject to ____

Answer 455

strict scrutiny.

Note: the Supreme Court has never found an interest so compelling that it justifies such action.

Question 456

A law is discriminatory under the free exercise clause if it is either:

Answer 456

• Not neutral on its face (that is, the law expressly provides favored or disfavored treatment based on religious belief, conduct, or
  status) or
• Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally
  or a religion in particular)

Question 457

A law that is ____ is not subject to the Free Exercise Clause. In other words, the Free Exercise Clause cannot be used to challenge government action unless the action was ____ to interfere with religion.

Answer 457

facially neutral and generally applicable; specifically designed

Question 458

A law that gives government officials discretion to grant exemptions from the law is not ____. Thus, if someone seeks an exception from such a law on religious grounds and the government refuses to grant the exception, that person can ____. ___scrutiny would apply.

Answer 458

generally applicable; challenge the denial on Free Exercise Clause grounds

Strict

Question 459

The Free Exercise Clause ____ religious exemptions from generally applicable governmental regulations that happen to
burden religious conduct; that is, a law that regulates the conduct of all people can be applied to prohibit the conduct of a specific
person despite the fact that their religious beliefs prevent them from complying with the law. But granting an exemption to accommodate
religious exercise (such as for underage drinking of sacramental wine) generally would ____ the Establishment Clause.

Answer 459

does not require; not violate

Question 460

Religious organizations ____ granted an exemption from suits alleging employment discrimination by ministers against their
religious organizations. This exception extends not only to the head of a congregation, but also to others who are in any position considered
by the congregation to be ____

Answer 460

must be; ministerial (for example, teachers at
religious schools).
-> Imposing an unwanted minister would
violate the Free Exercise Clause, and allowing the government to determine who will minister within a faith also would violate the Establishment Clause.

Question 461

The Supreme Court has granted the Amish an exemption from a law requiring _____, based on the Free Exercise Clause and the fundamental right to educate one’s children.

Answer 461

compulsory school attendance until age 16

Question 461

If a state’s unemployment regulations allow people to refuse work for “good cause,” then the state can’t refuse to grant unemployment benefits to people who quit their jobs for ____

Answer 461

religious reasons (the worker doesn’t need to belong to a formal religious organization in such a situation, as long as the belief is sincere.)

Question 462

The federal _____ allows a person to challenge federal laws of general applicability as burdening their religious beliefs and practices, and strict scrutiny is applied in actions brought under the act.

Answer 462

Religious Freedom Restoration Act (“RFRA”)

Question 463

A state may not limit eligibility for a generally available governmental benefit to ____

Answer 463

nonreligious organizations.

–> Thus, if a state provides textbooks to secular private schools, it must provide the same benefit to otherwise-eligible religious private schools.

Question 464

The Establishment Clause prohibits

Answer 464

government sponsorship of religion, meaning the government cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the government to pursue a course of neutrality toward religion.

Question 465

The government generally must remain ____ with respect to religion, neither favoring nor disfavoring it.

Answer 465

neutral

Question 466

The government may not ____ coerce individuals to exercise (or refrain from exercising) their religion.

Answer 466

directly or indirectly (Providing clergy-led invocation and benediction prayers at a middle- school graduation is an example of indirect coercion.)

Question 467

The Court has often stated that the Establishment Clause must be interpreted by reference to ____

Answer 467

historical practices and understandings.

–> Overall, this approach is sometimes referred to as “an analysis focused on original meaning and history.”

Question 468

Religious practices and displays that have been around for a long time tend to get upheld because the Court sees them as a tolerable
acknowledgment of the role that religion has played in the history and tradition of this country. More specifically, the Court also looks
at the time when the Constitution was first adopted and tries to determine ____

Answer 468

what the Founders intended to prevent by adopting the
Establishment Clause and what they would have deemed acceptable.

Question 469

The Supreme Court has upheld the following practices and displays under the Establishment Clause as complying with history and tradition:

Answer 469

• Prayer opening a legislative session or city council meeting.
• A four-decade-old Ten Commandments display on the Texas capitol grounds surrounded by other displays of historical or societal significance.
• A large WWI memorial cross that had been on display for many years when challenged.

Question 470

The Establishment Clause cases can be grouped into four categories:

Answer 470

(1) cases preferring one religious sect over others;
(2) a limited group of cases unconnected to financial aid or education;
(3) cases involving financial aid to religiously affiliated institutions; and
(4) cases concerning religious activities in public schools.

Question 471

Government action that prefers one religious sect over another violates the Establishment Clause, at least if such favoritism is not ____

Answer 471

necessary to achieve a compelling interest (strict scrutiny)

Question 472

In cases not connected to financial aid or education and not involving a sect preference, a good rule of thumb is that a law favoring or burdening ____ will be invalid (for example, exempting only “traditional religions” from state registration requirements), but a law ____ will be upheld (for example, a Sunday closing law)

Answer 472

religion or a specific religious group; favoring or burdening a large segment of society that happens to include religious groups

Question 473

A statute authorizing governmental aid to a religiously affiliated institution must be ___ toward religion.

Answer 473

neutral

Question 474

A neutral benefit program (such as school tuition assistance) is valid even if, as a result of the independent choices of private benefit recipients, it allows _____

Answer 474

public funds to be directed to a religious organization (such as a religious private school).

Question 475

Treating religious private schools the same as non-religious private schools does not violate the Establishment Clause and is ____ by the
Free Exercise Clause.

Answer 475

required

Question 476

School-sponsored religious activity is invalid, but school accommodation of religion may be ____. If a public school allows members of the public and private organizations to use school property when classes are not in session, it can’t deny a religious organization permission to use the property for meetings merely because___

Answer 476

valid; religious topics will be discussed.