Con Law

Question 1

What can be done one time and labeled as Preliminary Issues for a big essay

Answer 1

(1) Standing
(2) State action, if all the claims involve state action

Question 2

What is the opening sentence on whether a court can hear a case and the four doctrines included?

Answer 2

Article III of the Constitution limits the federal courts to hear cases and controversies. For a federal case to satisfy this limit, four doctrines must be met: (1) the plaintiff must have standing, (2) the claim must be ripe, (3) the claim must not be moot, and (4) the claim must not involve a political question.

Note: This comes before your standing header and analysis

Question 3

What is the overall rule for standing?

Answer 3

In order to have standing, a plaintiff must show injury in fact, causation, and redressability.

Question 4

Define injury in fact

Answer 4

The party must have a real, concrete harm that is actual and imminent (as opposed to hypothetical).

Note: Economic losses are the classic form of injury in fact.
* Note: Injunctive or declaratory relief, must show a likelihood of future harm.
* Note: Bringing a case to test the constitutionality of a law is ok so long as the rules are met.

Question 5

Define causation

Answer 5

The defendant’s actions are the cause of the plaintiff’s alleged injury

Question 6

Define redressability

Answer 6

A court’s judgment could remedy the injury in fact (in part or in whole)

Question 7

listen to some notes

Answer 7

• Examples where no redressability
  o P who claims zoning policy prevent low-income people from finding housing fails
  o Mothers who claim bad child support laws fail because a better not might not result in father providing support
  o Poor people claiming IRS policy hurts them in receiving treatment fails because could not demonstrate a different IRS policy would lead hospitals to provide care
   Note: If parents are filing for themselves and for their child, do standing analysis for the parents – e.g., their liberty was impacted, and for the son.

Question 8

though there is a general bar against third party standing, what are the 2 exceptions

Answer 8

(1) for individual
(2) for association

Question 9

2 situations in which an individual may assert a third party’s rights

Answer 9

(1) Close relationship between plaintiff and third party, OR
(2) Third party unlikely to assert their own rights

Question 10

define standing for organization - 2 situations

Answer 10

for an organization to have standing, it can (1) base standing on an injury to itself, or (2) assert a claim on behalf of its members

Question 11

3 requirements for organization to assert standing on behalf of its members

Answer 11

(1) Individual members have standing;
(2) Claim is related to the organization’s purpose; AND
(3) Suit does not involve participation from individual members.

Question 12

Rule for tax payer standing

Answer 12

Tax payers only have standing if they assert an Establishment Clause claim that arises from Congress’s taxing/spending power

Notes

o Insufficient
 Grants and tax credits
 Congress expenditure out of its property power insufficient
 Expenditures from general executive branch funds

• Note: Taxpayer does have standing to litigate their own tax bill (e.g., whether they really owe X dollars).
• Note: General welfare by itself is not enough, look for additional words of taxing and spending

Question 13

what is the rule for ripeness

Answer 13

A claim is ripe when the plaintiff would suffer harm if review is denied.

o Note: Whenever you see request for declaratory judgment, consider the ripeness doctrine.
Note: If the law has not yet been enacted, case is not ripe unless party has to spend a lot of money preparing

Question 14

Define mootness overall rule

Answer 14

A claim is not moot so long as there is an actual controversy at every stage of the litigation

Question 15

define mootness 3 exceptions (to where claim is not moot)

Answer 15

(1) Harm capable of repetition to same plaintiff but evading review
(2) voluntary cessation of conduct where reasonably likely to resume

Note:  An entire class action will not be dismissed as moot solely because the named party’s claim in the class is resolved/becomes moot.

Question 16

What are the four types of political questions that federal courts will not adjudicate:

Answer 16

(1) Republican form of government clause
(2) President’s conduct in foreign affairs
(3) Senate’s impeachment and removal process
(4) Partisan gerrymandering (though court will weigh on racial gerrymandering)

Question 17

what are the 2 areas in which the Supreme Court has original jurisdiction?

Answer 17

(1) disputes involving ambassadors or high-ranking ministers (lower courts have concurrent jurisdiction)

(2) matters between states or in which one state is involved

 Note: Congress may not enlarge original jurisdiction of Supreme Court.

Question 18

Two ways to invoke the Supreme Court’s Appellate jurisdiction

Answer 18

(1) Appeals - must hear - very few cases
(2) Writ of certiorari - may hear

Question 19

what type of appeal must the court hear?

Answer 19

decisions made by 3 judge federal district court panels that grant/deny injunctive relief

Question 20

how many judges to certify hearing a case by writ of certiorari?

Answer 20

4

Question 21

what 2 types of cases can be heard on writ?

Answer 21

cases from highest state court where challenging constitutionality of any state or violation of a state law

any case from a federal court of appeals

 Note: Congress can establish lower federal courts and tell them what kind of cases to hear

Question 22

A Supreme Court will not hear a state court decision if what

Answer 22

If there are independent and adequate state law grounds

Question 23

what are the 2 exceptions where SC will hear it

Answer 23

(1) unclear whether based on state law alone, or
(2) State follows federal Constitution.

Note: If the Supreme Court’s reversal of the federal claim would not change the outcome, the Supreme Court cannot hear it.

Question 24

What is the rule on the Eleventh Amendment and sovereign immunity?

Answer 24

Under the Eleventh Amendment, states are protected from being sued in federal court (and in state court where sovereign immunity exists).

Question 25

what are the 5 exceptions to the rule that a state cannot be used in federal court?

Answer 25

(1) explicit waiver of immunity
(2) suing government official in his official capacity for injunctive or declaratory relief, and where any money damages would come of his own pocked
(3) Congress abrogates its immunity under its Section 5 Fourteenth Amendment powers
(4) Federal court sues government
(5) Bankruptcy proceeding pursuant to Congress power to raise army

 Notes
* Local governments (e.g., city, county, police departments) are not protected.

Question 26

Name 3 facets of federal immunity from the states

Answer 26

(1) States cannot sue the federal government
(2) States cannot tax the federal government
(3) States can tax federal employees on an indirect basis
(4) Individuals cannot sue the federal government unless consent

Question 27

What are the 2 situations in which a federal court will defer to the state court and not enjoin the proceeding, and what is the doctrine called?

Answer 27

abstention
(1) Pending court state proceedings
(2) State law unclear and clarification needed from the states

Question 28

listen to congress’s authority to act

Answer 28

o Rule: Congress may only act pursuant to an express or implied power in the Constitution. Congress has no general police power (no general power to adopt laws for the health, safety, and welfare of citizens).

Question 29

what are 4 exceptions where the federal government does have police power?

Answer 29

(1) All matters involving the District of Columbia
(2) Federal lands and territories
(3) Military bases
(4) Indian reservations

Question 30

What are the 4 powers vested in Congress?

Answer 30

(1) Necessary and proper clause (must work in conjunction with another power)
(2) Commerce power
(3) Taxing/spending power
(4) Fourteenth Amendment power

Question 31

What is the two sentence rule for the Congress’s Necessary and Proper power?

Answer 31

Under the Necessary and Proper Clause, Congress has the power to make all laws necessary to carry out its powers. The power works in conjunction with some other federal power.

o Note: This can sometimes be a wrong answer on the MBE unless the additional federal power is also mentioned.

Question 32

What is the 1 line rule on Congress’s taxing and spending power?

Answer 32

Congress may spend and tax for the general welfare so long as it is not prohibited by the Constitution.

Question 33

When will a tax imposed by Congress be upheld?

Answer 33

If it has any relationship to revenue production or if Congress has the ability to regulate the activity taxed

Question 34

What is the rule on Congress’s Commerce power?

Answer 34

Congress has the ability to regulate interstate commerce. This includes (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) any economic activity which in the aggregate could have a substantial effect on interstate commerce.

Note: Channel is a highway, instrumentality is a car/truck/airplane

Question 35

what are the rules on non economic activity and regulating inactivity?

Answer 35

If the regulation deals with non-economic activity (crime, domestic violence), Congress must show that in a single instance there is substantial effect on IC

Congress cannot compel inactivity (e.g., cannot force citizens to purchase health insurance).

Question 36

What are the 2 requirements for Congress to use its Section Five Fourteenth Amendment enforcement power?

Answer 36

(1) Remedy or prevent an already-existing violation; AND
(2) The law is proportionate and congruent.

Note: Congress must not redefine the scope of the 14th Amendment.

Question 37

when do you analyze the tenth amendment anti-commandeering principle?

Answer 37

anytime the federal government tells the states what to do

Question 38

define tenth amendment anti-commandeering principle

3 sentence rule and last sentence has two requirements

Answer 38

The Tenth Amendment provides that all powers not vested in the federal government are reserved for the states. The federal government is a limited government and can only act with authorization under the Constitution. States, on the other hand, have general police powers. A spending measure enacted by Congress will be invalidated if:
(1) directly compels the states to act, or
(2) is unduly coercive (such that states are left with no choice but to comply with the federal government’s directives

Question 39

Congress can induce state governments through conditions linked to federal grants if which 4 conditions are met?

Answer 39

(1) Conditions are clearly stated;
(2) Condition relates to the purpose of the spending program;
(3) Conditions are not unduly coercive; AND
(4) Conditions do not otherwise violate the Constitution.

Question 40

What are Congress’s two war powers?

Answer 40

(1) Declare war
(2) Raise and support the army, navy, and naval forces

Question 41

What does the Suspension Clause protect and provide?

Answer 41

The Suspension Clause protects the writ of habeas corpus and provides that Congress cannot suspend the right unless there a rebellion or invasion occurs and public safety requires it

Question 42

Name 5 general powers that Congress has

Answer 42

(1) Naturalization laws
(2) Bankruptcy laws (non exclusive)
(3) Coin money
(4) Establish post offices and roads
(5) Set up tribunals

 Unconstitutional for Congress by statute to designate the capital of a foreign country.

Question 43

Define Congress’s property power

Answer 43

Congress has the power to dispose of and regulate federal property (including Indian property and wild animals).
Example: Congress prohibits hunting on federal lands.

Question 44

Define Congress’s bankruptcy power

Answer 44

Congress has the power to establish uniform rules for bankruptcy. The power is non-exclusive, so states may also regulate in this area, so long as there is no conflict.

Question 45

What is the Speech and Debate Clause Power?

Answer 45

Members of Congress are shielded from liability for anything said on the legislative floor.

Also protects their aides.

• Example: Challenger would be unsuccessful in a defamation claim for what was said on floor.
• Speeches and publications outside Congress are not protected

Question 46

What does the Constitution say about impeachment?

Answer 46

The President, Vice President, and all civil officers shall be removed by impeachment for and conviction of, treason, bribery, or other high crimes and misdemeanors

Question 47

go through 3 step removal process

Answer 47

House of Representatives decides to impeach and requires simple majority (51%)

Senate hears the case and Chief Justice resides of it. 2/3 Senate must approve removal.

Question 48

What is the appropriations power?

Answer 48

Congress can pass a bill to direct how the President must spend money. The President must spend them or obtain Congress permission to not spend the funds.

Question 49

What is Congress’s investigatory power?

Answer 49

Congress has an implied power to investigate to secure information as a basis for another action (e.g., impeachment)

Question 50

What are the 2 requirements for Congress to delegate one of its powers? What is the exception?

Answer 50

(1) Congress sets intelligible standards; AND
(2) The power is not uniquely confined to Congress (e.g., power to declare war or to impeach).
No limit exists on Congress’s power to delegate.
Exception
Major questions require clear direction from Congress

 Note: If you see answer with ‘excess or exceeds delegation’ or ‘improper delegation’ this is incorrect.

Question 51

For Congress to pass a law, what 2 requirements must be met?

Answer 51

(1) Bicameralism (passage by both the House and the Senate)
(2) Presentment (giving the bill to the President to sign or veto the bill)

Question 52

How are legislative vetoes treated, where Congress attempts to overturn an executive action without bicameralism or presentment

Answer 52

unconstitutional

Question 53

how are line item vetoes treated (when President attempts to veto part of bill and sign rest into law)?

Answer 53

unconstitutional

president must veto in full or accept full

Question 54

how to revamp a bill that has been vetoed by president?

Answer 54

2/3 vote of EACH house

Question 55

2 requirements for the Constitution to be amended?

Answer 55

(1) Passed by 2/3 of EACH house; AND
(2) Ratified by 3/4 of all state legislatures.

Question 56

how is it determined whether the president is acting within the scope of his presidential powers?

Answer 56

• If president acting with express or implied authorization from Congress: action presumed valid
• Where congress has not spoken: Action invalid if interferes with another branch
• Where Congress has spoken to the contrary: Action likely invalid

Question 57

What is a treaty?

Answer 57

An agreement between the U.S. and a foreign country that is negotiated by the President

Question 58

How to ratify a treaty?

Answer 58

2/3 ratification of the Senate

Question 59

Priority of a treaty as compared to the:
- Constitution
- a federal law
- a state law

Answer 59

• Constitution wins over treaty
• Between treaty and federal law, whichever enacted latest
• Treaty wins over state laws

Question 60

what is an executive agreement?

Answer 60

An executive agreement is an agreement between the U.S. and a foreign country that is effective when signed by the President and the head of the foreign nation. No Senate approval is required. Executive agreements or orders can be used for any purpose

Question 61

Priority of an executive agreement/order as compared to:
- Constitution?
- Federal law?
- State laws?

Answer 61

• Constitution wins over EA
• Federal law wins over EA
• EA wins over state law

Question 62

what is the one sentence header on a President’s war time powers?

Answer 62

The President has broad powers as Commander-in-Chief to use American troops in foreign countries (even without a Congressional declaration of war).

 Only Congress can declare war, but President has power to command troops
* President has an emergency power to send troops abroad without a declaration of war, whether or not Congress is in session.
* Congress determines if troops stay after 60 days.
* President always win on this, even if no war!
 Never pick an answer that says “President’s use of troops in foreign country is unconstitutional
 President has power to seize private property in wartime unless Congress denies it.

Question 63

what are presidents powers to detain individuals abroad?

Answer 63

The President has the authority to detain U.S. citizens and non U.S. citizens abroad who are deemed enemy combatants

Question 64

What are US citizens detained abroad entitled to?

Answer 64

(1) Notice of why being held
(2) Opportunity to rebut in front of a neutral decision maker

Question 65

3 factor test to determine whether non US citizen should have habeaus rights?

Answer 65

(1) Degree of procedures used
(2) Whether location being held is within US functional control
(3) Practical concerns?

Question 66

notes on 2 other presidential powers

Answer 66

 President has broad discretion in determining whether to admit individuals to the U.S.
 President has the exclusive power to recognize foreign states and what is included in a foreign state

Question 67

Define the President’s appointment powers.

Answer 67

The President has the power to appoint all ambassadors, federal judges and officers of the U.S. including all heads of agencies.

Question 68

When can Congress work with the President on an appointment?

Answer 68

Only when it deals with a group that does not have regulatory power (e.g., 9-11 commission)

Question 69

What is Congress’s appointment power?

Answer 69

Congress has the power to appoint people in inferior officers, including those that work for the President, along with those in the lower federal courts

 The President may not make recess appointments when the recess session is less than 10 days

Question 70

Define the President’s removal power

Answer 70

The President may fire any executive branch officer, unless removal is limited by statute.

Question 71

For Congress to limit (not prohibit) the President’s removal of an officer, what 3 requirements must be met?

Answer 71

(1) Office where independence from the President desirable;
(2) Good cause; AND
(3) Cannot be a single person who heads and agency and exercises substantial discretion

Question 72

Presidential Enforcement Power - list facts

Answer 72

• President can enforce laws, not make them and may delegate his powers to other executive officers
• AG is the Chief Law Enforcement official
• President may direct federal agencies through executive orders
• President may not direct private parties outside of the executive branch unless authorized by Congress
• President may set up presidential advisory commissions

Question 73

3 facts about President veto power

Answer 73

• President can veto any bill he wants
• Anything not vetoed within 10 days becomes law
• If President vetoes, Congress can override by 2/3 vote in each house

Question 74

What is the rule on the President’s pardon power?

Answer 74

The President may pardon FEDERAL CRIMINALS.
Does not apply to state criminals or civil.
Does NOT apply to impeachment.
Any attempt by Congress to qualify the power is unconstitutional

Question 75

What is the President’s level of privilege with respect to national security secrets?

Answer 75

Absolute privilege

Question 76

What is the President’s privilege for presidential paperwork and conversations?

Answer 76

Qualified privilege that must yield to other important government interests

Question 77

What is President’s privilege for his financial records when called for by subpoena? How about for Congress?

Answer 77

The President has no immunity to keep his financial records from subpoenaed

If Congress requests, the court must balance competing interests

Question 78

When must the President respond to subpoenas for information related to a criminal investigation?

Answer 78

Always so long as the documents do not encompass national security

Question 79

define the rule for the president’s immunity from suits

Answer 79

The President has absolute immunity from criminal and civil suits for official acts taken as President. The President does not have immunity from actions that occurred prior to him or her taking office.

Question 80

Define the Supremacy Clause

Answer 80

The Supremacy Clause provides that the Constitution, federal laws, and federal treaties are the supreme law of the land. Any state law that conflicts with federal law is void. The presumption is that state powers should not be superseded unless this was a clear and manifest purpose by Congress.

Question 81

what are 2 types of preemption? and the two subtypes

Answer 81

(1) express
(2) implied - field and conflict

Question 82

expess preemption

Answer 82

 Express preemption: Federal law expressly states federal law is exclusive.

Question 83

implied conflict preemption and exception

Answer 83

State law prevents achievement of federal law
exception - state government can chart their own path on environment - if you see EPA - state can be stricter than them

Question 84

implied field preemption

Answer 84

Congress evidences clear intent to preempt state law through extensive regulation

o State law can be more restrictive than federal law, just cannot conflict. State law cannot be more lenient. States can be tougher because they own the police power.

Question 85

define the intergovernmental immunity doctrine

Answer 85

The federal government is immune from unwanted taxation and regulation
exception
non discriminatory, indirect taxes (e.g., state income tax on federal employees)

o Example: Unconstitutional to pay State tax from the Federal Treasury

Question 86

Define the opener for the Dormant Commerce Clause (remember it can be referred to as Commerce Clause)

Answer 86

Under the Commerce Clause, Congress has the power to regulate interstate commerce. If Congress is silent (e.g., dormant) on the matter, the states may regulate so long as they do not discriminate against or unduly burden interstate commerce.

Question 87

scope of dcc?

Answer 87

EVERYONE
corporations
citizens
aliens

Question 88

what is the law if discriminates?

Answer 88

If the state regulation discriminates against interstate commerce (either facially or in effect), the law is presumed invalid unless the state can show that there is
(1) a legitimate (non economic) government purpose; and
(2) no less burdensome way to achieve the government purpose

Question 89

3 exceptions to law being presumed invalid

Answer 89

3 exceptions
(1) state is market participant
(2) Congress approves the discrimination
(3) Involves performance of a traditional government function

Question 90

what is rule if law does not discriminate against interstate commerce?

Answer 90

the regulation is presumed valid unless the burdens outweigh the benefits

Question 91

what step to analyze first?

Answer 91

whether interstate commerce implicated - go through 3 part rule

Question 92

which other issue to consider with DCC?

Answer 92

if citizens, privileges and immunities of Fourth Amendment. this does not apply to corps and non citizens.

Equal protection claim - good to run analysis if time, but will likely fail if law applies to everyone

recall - equal protection and all substantive due process - available to corporations, aliens, and citizens!

Question 93

listen to DCC essay approach

Answer 93

standing
 Analyze Preemption
 Define Dormant Commerce Clause
 Does the state’s law implicate interstate commerce? (3 part checklist)
* Regulate channels of interstate commerce?
* Regulate instrumentalities of interstate commerce?
* Economic activity in the aggregate where it is rationale to believe there will be substantial effect on interstate commerce?
 If the law discriminatory, presumed invalid unless passes two pronged test.
 If the law is not discriminatory, presumed valid so long as burdens outweigh benefits

Question 94

Define Privileges and Immunities Clause of Article IV

Answer 94

Under the Privileges and Immunities Clause of Article IV, the state may not discriminate against out-of-staters with regards to economic matters or fundamental rights. Such laws will be struck down unless they survive a strict scrutiny review.

o Scope: The P&I clause does not apply to corporations or aliens.

Question 95

examples of violation of P and I of Fourth?

Answer 95

Higher taxes or license fees for out of staters

Commercial fishing

Practice of law

Voting - durational residency requirements are unconstitutional

o Note: Perhaps discuss preemption if relevant.
o Note: Wrong answer if says there is discrimination against a corporation or non-residents or non-citizens

Question 96

define Privileges or Immunities Clause of the Fourteenth Amendment

Answer 96

The Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from denying a citizen the rights of national citizenship, such as the right to interstate travel or the right to establish residency in a new state

o Note: Use whenever you see the word ‘residency’ or ‘residency requirements’
o Does not apply to corporations, non-citizens, or legal residents.
o Note: This is usually not a MBE answer unless it is accompanied by the right to travel

Question 97

If the state is taxing interstate commerce - what two issues do you analyze?

Answer 97

DCC

Validity of a State Tax

Question 98

3 requirements for a state tax to be valid

Answer 98

(1) State tax not preempted by federal law;
(2) Substantial nexus to the state; AND
(3) State tax on interstate businesses must be fairly apportioned.

Question 99

what is a use tax

Answer 99

a tax on goods purchased outside the state but used therein

Question 100

when is a use tax valid

Answer 100

so long as it is not higher than sales tax

Question 101

what is sales tax

Answer 101

tax on sale of goods - valid if tax is valid

Question 102

Define Full Faith and Credit Clause

Answer 102

The Full Faith and Credit Clause of the Constitution prohibits state courts from relitigating cases in which the courts of another state have already rendered a final judgment.

Question 103

what is the state action requirement - you should fully define this on an essay

Answer 103

The Constitution applies to state action. Private conduct does not need to comply with the Constitution with the exception of racially discriminatory conduct (under the Thirteenth Amendment).

In some instances, where a private actor is performing a government function or if entanglement exists, state action will be found.

Question 104

Define the exception of the public function

Answer 104

The Constitution applies if the private actor is performing a task that has traditionally been performed by the government.

Example: Company town, but not a mall

Question 105

Define the entanglement function

Answer 105

State action is found if the government authorizes, encourages or facilitates unconstitutional activity

Question 106

listen to notes on exceptions to state action aka entanglement - where found and where not found

Answer 106

o Examples – Government Doing Any of the Below
 Government enforcing racially restrictive covenants
 Government leasing premise to a restaurant that racially discriminates
 State providing books to schools that racially discriminate
 Private entity regulating interscholastic sports within a state
 Public officials administered a private discriminatory trust

o No State Action – Examples
 State grants a monopoly to the business
 State heavily regulates the business
 Government funding or money is never enough for state action
 Private school that is over 99% government funded fires a teacher because of her speech
 NCAA orders suspension of a basketball coach at a state university
 Private club with a liquor license from the state racially discriminates
 Note: To satisfy the “state action” requirement, the state must be “significantly involved” in the action of the private entity.

Question 107

Define the Thirteenth Amendment

Answer 107

The Thirteenth Amendment is one of the broadest amendments to the Constitution, applying not only to the government but also to private actors. A regulation is unconstitutional if it forces one person to work for another, even if compensation is paid.

Notes
- Note on Thirteenth Amendment for MBE
o Private discrimination never violates the 13th Amendment by itself, but can violate federal statutes enacted under the 13th Amendment and only slavery violated the 13th A.
- Conclusion: Thus, the statute compels the boys into involuntary servitude and should be found unconstitutional under the Thirteenth Amendment.

Question 108

Define the Fifteenth Amendment

Answer 108

The Fifteenth Amendment prohibits the government from denying a citizen’s right to vote on the basis of race or previous condition of indentured servitude.

Question 109

What is the Bill of Rights and who does it apply to?

Answer 109

The Bill of Rights is the first 10 amendments to the Constitution and applies to the federal government

o The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment

Question 110

Which 3 provisions of the Bill of Rights have not been incorporated against the states via the DPC of the Fourteenth Amendment?

Answer 110

(1) Third Am. right to not have a soldier quartered in one’s home
(2) Fifth Am. right to a grand jury indictment in federal court
(3) Seventh Am. right to a jury trial in civil cases

o Note: The Constitution sets the minimum standards on rights. States generally are free to grant higher standards than those granted by the Constitution.

Question 111

3 levels of scrutiny

Answer 111

rational basis
intermediate scrutiny
strict scrutiny

Question 112

define rational basis

Answer 112

The challenge must prove that the regulation is not rationally related to a legitimate government purpose

 Note: Any conceivable objective sufficient event if law is a poor fit or inspired by ulterior motives.

Question 113

define intermediate scrutiny

Answer 113

A law is upheld if the government can prove the regulation is substantially related to an important government purpose

Question 114

define strict scrutiny

Answer 114

A law is upheld if the government can prove the regulation is necessary to achieve a compelling government interest (least restrictive means)

Question 115

Name individual liberties

Answer 115

Equal protection
substantive due process
procedural due process
freedom of speech
free exercise
establishment clause
freedom of association

Question 116

If a question asks about ‘due process’ what do you do?

Answer 116

analyze both substantive due process and procedural due process

Question 117

what is the dpc that applies to the fed government versus to the states?

Answer 117

DPC of 5th Amendment applies to federal government, and DPC of 14th Am applies to state and local governments

Question 118

Define the due process clause

Answer 118

The Due Process Clause of the Fourteenth Amendment applies to state and local governments. Procedural due process prohibits a state from taking a person’s life, liberty, or property without due process. Due process requires, at a minimum, notice and an opportunity to be heard in front of a neutral decision maker. The clause applies to corporations as well as to non-citizens.

A deprivation of liberty occurs if there is a loss of a significant freedom provided by the Constitution or statute. A deprivation of property exists when one has a reasonable entitlement to continued receipt of the government benefit.

Question 119

To assess whether due process is adequate, the court will assess 3 factors - what are they

Answer 119

(1) the importance of the individual’s interest
(2) the value of procedural safeguards
(3) the government’s interest in fiscal and administrative efficiency

Question 120

Types of Liberty and Property Interests - listen

Answer 120

o Examples
 Right to education
 Welfare benefits
 Disability benefits
 Government employment
 House, car
 NOTE: No property interest if in at-will employment; discharge must hurt reputation or hinder from getting another job.

o Exception to Property
 5th Am. Takings Clause
* (1) Taking, (2) for public use, (3) just compensation provided

Question 121

What is the standard to find government standard to impose liability in procedural due process

Answer 121

Negligence is not sufficient
There must be intentional or reckless government action.

Question 122

rule for third party - whether government liable

Answer 122

The government is not liable for the actions of private third parties.

Question 123

what is the rule for emergency situations

Answer 123

In an emergency situation, the government is liable under procedural due process only if its conduct “shocks the conscience”.

Question 124

when welfare benefits are terminated, what is due process

Answer 124

notice
pre-determination hearing

Question 125

when disability benefits terminated

Answer 125

notice
post-determination hearing

Question 126

drivers license suspension

Answer 126

notice
pre-determination hearing unless as under breathalyzer statute

Question 127

student discipline at school

Answer 127

notice
hearing

Question 128

termination of parental custody

Answer 128

notice
pre determination hearing

Question 129

punitive damages award

Answer 129

instructions to jury to ensure reasonableness

Question 130

american citizen detained as enemy combatant

Answer 130

notice and hearing

Question 131

civil forfeitures - real property

Answer 131

notice
pre determination hearing

Question 132

civil forfeitures - personal property

Answer 132

notice
post determination hearing

Question 133

prejudgment attachment

Answer 133

notice and hearing
exception - emergency situations

Question 134

define fifth amendment takings - and what steps to do first

Answer 134

Standing

State Action

Fifth Amendment Takings

Under the Fifth Amendment, the government may take private property so long as it is for public use and just compensation is paid.

Question 135

2 types of taking

Answer 135

possessory

regulatory

Question 136

rule for possesory

Answer 136

a possesory taking when the government physically occupies the property

 Minor acts sufficient (e.g., taking small interest in your oil and gas; running cable lines on your property) and includes government hiring a water company

Question 137

more on possessory taking

Answer 137

ANY permanent physical occupation by the government is a taking and entitled to compensation, how matter how small – minor acts are a taking

Question 138

what is a per se regulatory taking?

Answer 138

A regulatory taking is per se when it deprives the owner of 100% of all economic viable use of the owner’s property.

• Note: The land may still have some limited use or value (walking on sand but you can’t build beach front property).
  Note - even if there is a decrease in property value, that does NOT mean there is a regulatory taking

Question 139

what factors are considered to determine whether there is a partial regulatory taking? name case and 3 balancing factors

Answer 139

Penn factors
(1) level of decrease in owner’s property value
(2) degree of investment-backed expectations
(3) character of the governmental action

notes

o Note: Consider level of investment put in. Argue for the degree of investment put in. Government argues that amount of investment was not reasonable. Consider whether owner conducted a feasibility study.
o Note: Assess government intention; program effectiveness
 Examples where not a taking
* Zoning ordinance, ordering destruction of diseased trees, landmark ordinance

Question 140

what is the additional issue to mention

Answer 140

The US Supreme Court has recognized the denominator problem where the determination of whether the land is impacted depends on how much land is in question. The owner would like to reduce the denominator to increase her liklihood of a finding that there is a per se taking, while the government would like to increase the denominator to minimize a showing of a taking.

Question 141

listen to denominator example

Answer 141

• Example: If a restaurant must be completely shut down, do the owners live above the building? Is there still use for their property? List the facts that you would want to know. Also, they would still be able to use the restaurant as a residential property, so the value of the area is not 0 – be careful not to quickly say it’s a total taking, think of all possible economic uses
• Example: If Paula only owned 10 acres and was denied development of that entire 10 acres, she would prevail against the County in a per se taking claim. However, because Paula owns (and has owned ―for many year) 100 acres, she is unable to prevail in a per se taking claim since the County did not deprive her of 100% economically viable use of all her property.

Question 142

define the rule for public use

Answer 142

A taking is for public use if it is rationally related to a government purpose.

Note
The government may even authorize a taking by private enterprise (e.g., railroads and public utilities).

Question 143

what is the rule for just compensation

Answer 143

Just compensation is measured as the fair market value of the land/property at the time of condemnation. Fair market value can be determined by appraisal or by the sale of comparable properties. The government is not responsible for relocation costs.

• No compensation if worthless property
• Note: The calculation is not the drop in fair market value.
   NOTE: On exam, argue for government that the number should be very low, and argue for claimant that amount should be very high.

Question 144

define the vested rights issue

Answer 144

A private property owner has a vested right to develop when a government body has specifically approved the development.

• Example: Here, although Paula has expended a substantial amount of expenditure in determining the feasibility for developing the 10 acres, she nonetheless has no vested right to develop because she lacks the requisite government approval. There are no facts indicating the government issued Paula any type of building permit or other individualized action specific to her property that would vest her rights to develop. Thus, because she has no vested right to develop the 10 acres, the value of the 10 acres is tantamount to its value as undeveloped wetlands, i.e., $200,000.

 Exam Tip
* Takings issue cluster
o Equal protection, state powers, real property

Question 145

Define the Contracts Clause

Answer 145

Under the Contracts Clause, no state shall impair the obligations of existing contracts.

Question 146

rule for private contracts

Answer 146

A violation occurs for a private contract where the state has substantially interfered with a party’s rights.

Question 147

rule for government contracts

Answer 147

A violation occurs for a government contract where the state can survive a strict scrutiny review.

 Note: Can be wrong answer if it tries to apply clause to federal government. Does NOT apply to federal government.

Question 148

Define the ex post facto law and what does it not apply to

Answer 148

An ex post facto law is a law that makes criminally illegal what was once legal activity.

• Does not apply in civil cases. If it says “civil”, ex post facto is the wrong answer.
• Note: Retroactive civil liability only needs to pass rationale basis test.

Question 149

Define bill of attainder

Answer 149

The government may not pass an act that imposes a punishment of a named individual without a trial.

Question 150

Define the Second Amendment

Answer 150

The Second Amendment protects the right of individuals to bear arms for self-defense. This includes the right to carry a gun in public.

Question 151

what is the standard of review for the second amendment

Answer 151

State laws regulating handguns are allowed only if the law is consistent with the country’s historical traditions of firearm regulation

Question 152

what is required for gun permit regulation - 3 requirements

Answer 152

(1) clear criteria;
(2) must not give an official discretion; AND
(3) must not ask for proof of a need for safety

Question 153

laws that prohibit right to vote are subject to strict scrutiny - how about laws prohibiting non citizen from voting

Answer 153

rational basis

Question 154

what is the max number of days a state can impose a residency requirement before being allowed to vote

Answer 154

50 days

Question 155

max time a state can impose a residency requirement to get divorced

Answer 155

one year

Question 156

for one person one vote, what is the standard for congressional districts

Answer 156

almost exact mathematical equality is required

Question 157

for one person one vote, what is the standard for state government districts

Answer 157

the variance must not be unjustifiably large

Question 158

listen

Answer 158

o Rule: All districts must be the same in population if a popular election from individual districts is used
 Exception – elections of officials who do not exercise government authority (e.g., man running water storage)
o Voter approval does not justify violations of the one person one vote rule
- At large elections are constitutional unless there is proof of a discriminatory purpose
- The use of race in drawing election district lines must meet strict scrutiny

Question 159

if uncounted votes are counted without rules, what type of claim may be raised?

Answer 159

equal protection

• Note for MBE: Property ownership required for voting or for holding public office almost always is unconstitutional except when it’s a water district election for voting only.

Question 160

four initial things to issue spot in substantive due process

Answer 160

(1) standing
(2) state action
(3) substantive due process definition
(4) nature of right

Question 161

listen to fundamental rights

Answer 161

right to interstate travel including right to set up residency
right to vote
right to privacy including right to contraception, right to marry, right to procreate, right to private education, right to family, right to refuse medical treatment
freedom of speech
freedom of religion
freedom of association

note on medical
* However, no constitutional right to physician-assisted death.
* State may require clear and convincing evidence a person wanted treatment terminated
* A state may prevent family members from terminating treatment for another.

Question 162

what are some non fundamental rights

Answer 162

economic rights
abortion
right to foreign travel
employment regulations
punitive damages
right to physician assisted death

Question 163

appropriate level of scrutiny in substantive due process for fundamental versus non fundamental

Answer 163

strict scrutiny

rational basis

last step - does government action meet the designated level of scrutiny

Question 164

what are categories to header/underline in an equal protection claim

note - find an equal protection claim always or at least try

Answer 164

(1) Standing
(2) State Action
(3) Equal Protection
(4) Classification - facially, intent plus effect
(5) Level of scrutiny - suspect class and quasi suspect and all else
(6) Whether government survives level of scrutiny

Question 165

define equal protection

Answer 165

The Equal Protection Clause prohibits the government from denying citizens equal protection of the laws. The Equal Protection Clause is incorporated against the states.

Question 166

what do you say if its a federal law

Answer 166

The Fifth Amendment’s Due Process Clause applicable to the federal government - has been held to contain an identical guarantee as the equal protection clause in the Fourteenth amendment, applicable to the states

Question 167

existence of a classification - 2 ways

Answer 167

facially discriminatory
facially neutral but discriminatory in its intent and impact

Question 168

appropriate level of scrutiny - say whatever rules you would say on exam

Answer 168

The level of review depends on whether the class is a suspect class or quasi-suspect class.

Suspect classes are race, national origin, and alienage, and will be held unconstitutional unless they survive a strict scrutiny review, where the government shows that the law is necessary to achieve a compelling government interest, and is done in the least restrictive manner.

Quasi suspect classes are gender, legitimacy, and undocumented migrant children, the regulations of which will be subject to intermediate scrutiny, where the government will have to show that the regulation is substantially related to an important government purpose.

All other classes will be subject to a rational basis review where the challenger will have to show that the law is not rationally related to a legitimate government purpose.

Question 169

rules on affirmative action

Answer 169

States may implement regulations to remedy the effects of past discrimination if the class has suffered past discrimination.

Race based plans cannot be used in school admissions. Quota or point based systems are invalid. Using race as a soft variable is OK.

redistricting of legislative boundaries for the purpose of placing certain race or ethnicity in an area is unconstitutional

correct answer will say - remedy past discrimination

Question 170

listen

Answer 170

 Suspect classifications—strict scrutiny: Race, national origin, alienage, fundamental rights, content-based restrictions on speech
* Affirmative Action
o Rule: States may implement regulations to remedy the effects of past discrimination if the class has suffered persistent and readily identifiable past discrimination. Race-based plans (e.g., promoting minorities at schools) cannot be used to remedy general past societal discrimination.
o Race based affirmative action cannot be used in school admissions; quota or point systems are invalid; using race as a soft variable is OK
o Redistricting of legislative boundaries for the purpose of placing racial or ethnic minority voters in the majority is unconstitutional
o Correct answer choice will say “remedy of past discrimination”

 Quasi suspect classifications—intermediate scrutiny: Gender, illegitimacy, content neutral speech restrictions, undocumented immigrant children
* Gender classifications benefitting women that are based on role stereotypes not allowed
* Attorney striking down all female potential jurors on the basis of gender not allowed
* Gender classifications to remedy past discrimination allowed
* Laws that deny a benefit to all non-marital children but grant to all marital children not allowed
* Laws allowing non-marital children to recover from father estate only if parenthood established before father’s death valid
* Discriminatory statutory rape laws allowed
* All-male draft law allowed
* Requiring American fathers (but not moms) to prove parentage of nonmarital children born abroad in order to obtain U.S. citizenship for them allowed

 Other classifications—rationale basis: Age, disability, wealth, LGBTQ, economic regulation, law concerning alienage participation in functioning of the state government, Congressional regulation of aliens
* Example on wealth: A state must waive court filing fees imposed on indigents when the imposition of a fee would deny a fundament right to the indigent. The inability to pay a fee cannot be the sole basis upon which a person is deprived of a fundamental constitutional right. Raises equal protection issue – discrimination based on wealth; but note, access to courts is not a fundamental right.
 Exam Tip
* If you get an equal protection for a 25-year-old man, you have to assess both gender and age

o (3) Does the government’s action meet the designated level of scrutiny?

Question 171

First Amendment Speech question - go through the main headers you underline

Answer 171

(1) Standing
(2) State Action
(3) First Amendment
(4) Threshold Speech Issues
Vagueness
Overbreadth
Prior Restraint

Question 172

define the state action requirement

Answer 172

Free speech is applicable to the states via the Due Process Clause of the Fourteenth Amendment. State action is required.

Question 173

define first amendment free speech

Answer 173

The First Amendment Free Speech Clause protects the right to speak, which includes the right not to speak, and symbolic acts which are intend to communicate.

Question 174

Define vagueness

Answer 174

A law is void for vagueness if an average citizen is unclear as to what conduct is prohibited.

Question 175

define overbreadth

Answer 175

A law will be unconstitutional if it punishes a substantial amount of protected speech in relation to its plainly legitimate sweep.

Question 176

define prior restraint

Answer 176

A prior restraint is regulation of speech that stops speech before it occurs (e.g., court order prohibiting speech or a licensing regime). Prior restraints are presumed to be unconstitutional, with limited exceptions.

Conclusion: A prior restraint does not exist in this matter. Thus, P cannot challenge the policy on the grounds that it is a prior restraint.

Question 177

header sentence on content based vs content neutral

Answer 177

Speech regulations can be categorized as either content based or content neutral.

Question 178

define content based and level of scrutiny

Answer 178

Content based restrictions, those that regulate either the subject of speech or the viewpoint of speech, are subject to a strict scrutiny review, where the government must prove that the regulation is necessary to a compelling government interest and does so in the least restrictive manner. That said, some speech does not fall into First Amendment purview because it is not protected (e.g., incitement, true threats).

Question 179

6 categories of unprotected speech

Answer 179

(1) incitement
(2) true threats
(3) hostile audience
(4) fighting words
(5) obscenity
(6) fraudulent, misleading, or false commercial speech

Question 180

Define incitement - 2 elements

Answer 180

Incitement occurs where the speaker (1) Directs a statement in order to produce imminent lawless action; AND
(2) The action is likely.

Question 181

Define hostile audience

Answer 181

Hostile audience speech occurs where (1) there is a threat of imminent violence, and (2) the speaker does not heed to police demands to stop the speech

Question 182

define true threats

Answer 182

true threats occur when
(1) speaker communicates serious expression of intent to commit an act of violence; AND
(2) with an intent to intimidate a particular person or group

Question 183

define fighting words

Answer 183

fighting words are
(1) abusive words; AND
(2) likely to cause physical retaliation in an average person

• Note: Typically struck down for being vague or overbroad b/c difficult to define
• Sufficient: Calling someone a M-Fu. Not sufficient: Wearing jacket that says F* the draft.

Question 184

3 requirements for obscene speech

Answer 184

(1) appeals to the prurient (sexual) interest as determined by local community standards;
(2) Material patently offensive as defined by law; AND
(3) Material lacks serious artistic, political, or scientific value, as determined by a national standard.

• Notes
  o Obscenity requires sex. Violent video games and regular porn do not count.
  o The government may use zoning ordinances to regulate the location of sexually explicit (though not obscene) adult bookstores/theatres to reduce the secondary effects.
  o Child pornography may be completely banned, even if not obscene
  o Government may not punish private possession of obscene materials (but child)
  o Government may seize the assets of businesses convicted of violating obscenity laws

Question 185

commercial speech rule for not protected and 3 part test for whether regulations on speech upheld and 3 letter mneumonic

Answer 185

Commercial speech that is false, misleading, or fraudulent is not protected. Any other version of commercial will be upheld if it:

SIN
(1) Substantially related
(2) important government interest
(3) Narrowly tailored to serve that interest

o Note: Profane and indecent speech is protected speech unless over the broadcast media or in schools

Question 186

header sentence on content neutral restrictions

Answer 186

Content neutral regulations include time, place, and manner restrictions and must survive an intermediate scrutiny review plus alternate channels.

Question 187

header sentence on various forums

Answer 187

The government has the power to regulate speech, although the degree of power depends on the type of forum involved.

note
Regulations that are neutral with respect to subject matter and to viewpoint

Question 188

public forum and designated public forum

Answer 188

A public forum is a public space traditionally open for the expression of speech (e.g., public park, sidewalk) while a designated public forum is a public space not traditionally open to speech but that the government has opened for a particular time (classroom opened after school for civic use). Regulations at such forums are constitutional so long as they pass a substantially related to an important government interest and leave open alternate channels

 City officials may not set permit fees for public demonstrations
 If a private group holds an event in a public forum and is discriminatory on the basis of gender, the Fourteenth Amendment will not reach the private actor.
 Even if requirements met, regulation may be invalidated for other reasons (e.g., vagueness)
 There is no First Amendment right to use private property for speech purposes
 If it does not meet IS, must meet SS

Question 189

limited public forums and non public forums

Answer 189

limited public forums are those public spaces not traditionally open for speech but that the government has opened for a particular purpose, while non public forums are closed for speech purposes. Regulations regarding these forums must be viewpoint neutral and be rationally related to a legitimate government purpose.

• Note: Viewpoint neutral – topic can be restricted, but viewpoints may not be
   Otherwise, strict scrutiny will apply.
   Non public includes bill boards, signs, and buses

Question 190

define prior restraint and level of test

Answer 190

A prior restraint is a judicial order or an administrative system that stops speech before it occurs. Prior restraints must meet strict scrutiny.

 Examples where order invalid
* Prohibiting publication of Pentagon Papers because it may have an effect on the war
* Prohibiting grand jury witness from ever disclosing testimony
 Examples were order valid
* Prohibiting publishing of troop movements in time of war
* Enforcing contractual prepublication review of CIA agent’s writings

Question 191

define collateral bar rule

Answer 191

The violation of a prior restraint is subject to criminal liability, even if the law is ultimately held unconstitutional, unless the law was facially invalid.

Question 192

what is the rule if someone violates an order

Answer 192

they are prohibited from later challenging its constitutionality

Question 193

rule on pre trial publicity orders

Answer 193

Prior restraints on pre trial publicity will only be withheld if there is no other way of ensuring a free trial

It is virtually always possible to deal with the issue (prejudicing defendant) by means other than prior restraints (e.g., delaying trial, sequestering jurors).
* MBE Tip: Highly publicized crime with a judge who issues a gag order always unconstitutional.

Question 194

3 part requirement for licensing regime along with 3 part requirement for third element on procedural safeguards

Answer 194

(1) Important reason for the license;
(2) Clear standards that leave almost no room for discretion; AND
(3) Procedural safeguards in place
- pre determination hearing
- prompt decision
- prompt judicial review of decision

Question 195

2 part test for symbolic speech to be upheled

Answer 195

(1) Serves an important interest unrelated to speech; AND
(2) Burdens no more speech than necessary

o Examples where government can regulate: Draft card burning, nude dancing, burning a cross with the intent to threaten, contribution limits in election campaigns
o Examples where government cannot regulate symbolic speech
 Burning a flag, burning a cross (no threats), expenditure limits in election campaigns

Question 196

listen to other ways for government to violate free speech

Answer 196

• Other Ways for Government to Violate First Amendment Speech
  o Compelled Speech
   Examples
• Requiring website designer to make websites for same-sex weddings when it would violate her religious beliefs.
• Requirement to salute flag
• Requirement to display “live free or die” on license plate
  o Forcing someone to not be anonymous
  o Prohibition on compensation
  o Unconstitutional conditions
  o Trademark sections (subject to strict scrutiny)
  o Civil liability for speech
  o Government pressure to refrain from speaking
   Exception – Government Employees

Question 197

what is the rule for speech by government employees

Answer 197

speech by government employees during the performance of their job duties is NOT protected by the first amendment
(treat government like private employer)

• Speech by government employees not within their job duties may be punished if disruptive, but if a matter of public concern, court must conduct balancing test
• The federal government may prohibit federal executive branch employees from taking an active part in political campaigns
• Banning rank and file government employees for compensation for making speeches, writing articles, or making appearances is a violation of the First Amendment

Question 198

listen for now - will define this better in torts

Answer 198

o Defamation and intentional infliction of emotional distress
 If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving falsity of the statement and actual malice
 If the plaintiff is a public figure, the plaintiff can recover for defamation by proving falsity of the statement and actual malice
 If the plaintiff is a private figure and the matter is of public concern, the state may allow the plaintiff to recover by proving falsity and negligence by the defendant. However, the plaintiff may recover presumed or punitive damages only by showing actual malice.
 If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover presumed or punitive damages without showing actual malice.
 Liability for intentional infliction of emotional distress for defamatory speech must meet the defamation standards and cannot exist for speech otherwise protected by the First Amendment.

Question 199

what is the rule for profane and indecent speech

Answer 199

such speech is protected unless it is done over the broadcast media or in schools

Question 200

what is the rule for government speech

Answer 200

Speech by the government cannot be challenged as violating the speech clause of the First Amendment.

note - there may be a violation of the Establishment Clause.

• Government may voice its own opinions (language on license plate)
• Government may choose which artists to fund
• Government may choose which designs for public park statute

Question 201

define First Amendment Freedom of the Press

Answer 201

standing
state action
The government may not abridge the freedom of the press. This is incorporated against the states through the DPC of the fourteenth amendment.

Question 202

rule for legally obtained information

Answer 202

media not liable for truthful reporting that was lawfully obtained from the government

Question 203

rule for illegally obtained information

Answer 203

media not liable for reporting on information illegally obtained so long as
(1) media did not participate in the illegality; AND
(2) matter of public concern

o The government may limit its dissemination of information to protect privacy.

Question 204

what is the right to access a criminal trial, under the first amendment

Answer 204

The First Amendment guarantees the public and the press a right to attend criminal (and likely civil) trials, which will only be overridden in a compelling interest (e.g. protect children who are victim of a sex offense)

Question 205

first amendment freedom of association

Answer 205

standing
state action
first amendment - freedom of association

The First Amendment Freedom of Association guarantees the freedom to associate with groups with one whom chooses. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny.

Question 206

to punish membership in a group, it must be proven that the person did what 3 things

Answer 206

(1) Actively affiliated with the group;
(2) Knowing of its illegal activities; AND
(3) With the intent to further the illegal activity.

Question 207

campaign contributions level of scrutiny

Answer 207

intermediate scrutiny

laws can limit contributions to ONE person but cannot limit how the money is spent

Question 208

issues headers in first amendment freedom of religion

Answer 208

Case and Controversy
Standing
State Action
First Amendment Freedom of Religion
Free Exercise
Establishment Clause

Question 209

define first amendment freedom of religion

Answer 209

The First Amendment protects the free exercise of religion though laws that are neutral and of general applicability may not be challenged. The First Amendment also prohibits the government from establishing religion; the government must maintain a stance of neutrality toward religion. Strict scrutiny is applied to such challenges.

o Example: The denial of benefits to a religious school that are provided to a secular private school must meet strict scrutiny.

Question 210

rule for assessing sincerity of one’s religious beliefs

Answer 210

A court may assess the sincerity of one’s religious beliefs but may not question the veracity of religious beliefs. The SC has never found an asserted religion to be non-religious.
- Note: Supreme Court has never found for the government when strict scrutiny was applied.

Question 211

notes on establishment clause

Answer 211

o Rule: Under the Establishment Clause, the government must not make laws respecting the establishment of religion and must act with neutrality toward religion. The government is subject to a strict scrutiny review.
o Examples
 A football coach praying on the field does not violate the Establishment Clause; punishing him for doing so violates Free Exercise and Free Speech
 SC granted the Amish an exception from a law requiring compulsory school attendance until age 16
 Law dealing with large portion of society that happens to include other religious groups is constitutional (e.g., Sunday closing law will be upheld)
o Note: If speech involved, can also raise viewpoint discrimination under the Free Speech Clause
o Wrong answers from Lemon Test and Endorsement Test (offshoot of Lemon test)
 (1) Valid because it has a secular purpose
 (2) Valid because it has a primary purpose or effect that neither advances nor inhibits religion
 (3) Valid because it does not produce excessive government entanglement of religion.
 (4) Valid because government appeared to endorse or disapprove religion from the standpoint of a reasonable and informed observer

Question 212

From learning sheet and MBE

Question 213

Congressional power to define and limit judicial jurisdiction

Answer 213

Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction, but Congress may give concurrent power for lower federal courts to hear cases involving ambassadors, public ministers, and consuls

Question 214

• Original Jurisdiction – SC
  Two situations

Answer 214

(1) Cases involving ambassadors, public ministers, and consuls
(2) Cases in which a state is a party

Question 215

2 forms of appellate jurisdiction

Answer 215

Appeals
Writ of certiorari

Question 216

information on appeals that are mandatory

Answer 216

o Appeals – mandatory
 SC must hear appeals
 Decisions from 3 judge federal courts that grant/deny injunctive relief

Question 217

o Writ of certiorari – discretionary
2 situations in which court may hear case

Answer 217

(1) Cases from the highest state court where:
o Constitutionality of a federal statute, federal treaty, or state statute
o State statute allegedly violates federal law
(2) All cases from federal courts of appeals

Question 218

independent state law grounds rule

Answer 218

SC will not hear case if it has been adequately resolved by an independent state ground

Question 219

final judgement rule and 1 of 3 places it has to come from

Answer 219

SC will hear case only after a final judgment from:
 State Supreme Court
 Federal court of appeal
 3 judge federal district court

Question 220

Define injury in fact

Answer 220

A concrete, particularized injury that need not be economic.

Question 221

Define ripeness

Answer 221

A claim is ripe if harm would arise to the party without the court’s review.

Question 222

Define mootness

Answer 222

A claim is moot if there is not a live controversy. This applies at every stage of the proceeding.

Question 223

Appropriation rule as applied to President

Answer 223

The President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent.

Question 224

Take care clause as it applies to President

Answer 224

The President shall “take care that the laws be faithfully executed”

Question 225

Who hold some power to appoint?

Answer 225

Both the President and Congress

Question 226

Who is the President allowed to appoint with the advice and consent of Congress?

Answer 226

Supreme Court Justices
Officers
Public Ministers and Counsel

Question 227

who are officers?

Answer 227

those with administrative or enforcement powers

Question 228

What is the exception to where the President can appoint without Senate advice or consent?

Answer 228

When there is recess for longer than 10 days

The Senate is only in recess when it says it is in recess.

Question 229

Who may Congress appoint without anyone else’s input?

Answer 229

Inferior officers and can give this power to the President or judiciary or to the heads of departments

Question 230

what is the President’s removal power

Answer 230

The President can remove for any reason at any time members of his executive office (e.g., the Cabinet)

For all others, like those in quasi legislative or quasi judicial groups, the President may remove those who are the sole person in power of a group with broad authority.
For those in a commission with multiple heads, there must be good cause.

Executive Members
o The President can remove high level, purely executive officers (e.g., Cabinet members) at will, for any reason at all, without any interference from Congress.

Non-Executive Members
o Head of Single Head Run Agency
 Congress may not restrict the President from removing the head of an independent agency if that person is the sole director and has significant power.
o Multi Person Commission
 Congress may provide statutory limitations (e.g., removal for good cause) on the President’s power to remove

Question 231

two limitations on congress related to removal

Answer 231

Congress cannot give itself the removal power to remove an executive officer outside of impeachment

Congress cannot give a government employee subject to removal from office by Congress any executive powers

Question 232

Congress delegation power

Answer 232

Congress has broad authority to delegate its legislative power to the executive branch and to administrative agencies, and even delegation of rule-making power to the court has been upheld

Limits on the delegation power

 The power cannot be uniquely defined to Congress (e.g., power to declare war or to impeach)
 A delegation will only be upheld if Congress gives clear standards
 However, a major question involving wide-sweeping and economic or political significance that Congress has purportedly delegated may not be automatically upheld. The Court will review the case.
 Congress cannot give itself the power to remove an officer of the executive branch by any means other than impeachment. If Congress delegates rule making power to an executive branch agency, it may not retain the power to fire the agency head.

Question 233

Define the Freedom of Association

Answer 233

The Freedom of Association protects the right to join together with others for the purpose of political or expressive activity. However, the right is not absolute. Also, government regulation will be subject to strict scrutiny.

Examples
* State law can prohibit membership private clubs that discriminate on the basis of a protected class so long as the law does not impede the members ability to engage in First Amendment activity.
* Federal law can prohibit material support to a terrorist organization with knowledge of it being designated a foreign terrorist organization by the federal government (this does not violate association or speech)
* A state law cannot bar the Boy Scouts from excluding gay people because this would significantly burden the right of expressive association of the Boy Scouts, since this is against one of Boy Scouts sincerely held purposes

Question 234

3 factor requirement to punish someone for joining a group with an illegal purpose

Answer 234

(1) D knows the unlawful purpose;
(2) D actively participates in the group; AND
(3) D seeks to further the unlawful intent.

Question 235

listen to electoral process considerations

Answer 235

 Regulations of the electoral process
* Severe restrictions – apply strict scrutiny
* Reasonable restriction – generally upheld on the states’ important regulatory interest

 Ballot Regulation
* Requirement to obtain certain # of signatures to get on ballot OK
* Requirement to disclose names and addresses of people who sign ballot petitions OK
* New political party must collect twice as many signatures Not ok

 Primary Voting Regulations
* Requiring that voters in a primary’s party be registered either in the party or as independents OK
* Prohibiting someone from appearing as candidate to more than one party OK

 Limits on Campaign Contributions
* Apply IC
* Limits on contributions to a single candidate OK
* Limits on contributions a person aggregately makes to various candidates  not OK
* Limits on how much a person can expend on campaign Not ok
* Limits on contributions to a political committee Not ok

 Election Day
* Prohibiting any campaigning on election day Not ok
* Prohibiting campaigning within 100 feet of pool Ok

 Judges
* Prohibiting judges running for election to express political views Not ok
* Banning judge from personally soliciting campaign funds Not ok

 Main objective that can justify restriction of political speech: Prevention of Quid Pro Quo corruption

Question 236

as it relates to free speech and public employment - including government contractors
what is rule for speech related to workplace duties

Answer 236

a government may punish its employees for speech related to work duties, even if is a matter of public concern

A government employer may evaluate an employee on any writing or speech undertaken as part of the job.

Question 237

what are the 2 rules related to speech not related to work duties

Answer 237

• if a matter of public concern, court must balance employee versus employer interests
• Example: School cannot fire teacher for writing letter to newspaper about matter of public concern
• Example: Employee can express disappointment about matter of public concern. Should not be fired for it.
• if not a matter of public concern, employee can be punished if disruptive to work
  example: * Example: OK to fire government employee who passes out leaflets at work complaining about employer’s policies

Question 238

can government punish employee for participating in political campaign?

Answer 238

yes if they are members of executive team

Question 239

can government punish employee for promoting a party?

Answer 239

no, unless partisan belief is important to the job

(e.g., in policy making roles, or due to the confidential nature of the work)

Question 240

what is the rule on government employer forcing employee to disclose association memberships?

Answer 240

could have chilling effect. employee only has to disclose those memberships which are relevant to the position.