Con Law

Question 1

May POTUS send troops to aid another country in a time of need without congressional approval?

Answer 1

Yes. The President may send troops into actual hostilities without a congressional declaration of war.

The President as Commander in Chief of the Armed Forces has broad discretion to use American troops in foreign countries. In fact, never in all of American history has a presidential use of troops in a foreign nation been declared unconstitutional. Thus, the President’s power as Commander in Chief would justify this action.

Question 2

Does Congress’ tax and spending power for the general welfare allow it to put conditions on universities that accept federal funds?

Answer 2

Yes. Congress may spend for any public purpose, and may require entities that accept government money to act in a certain manner. Because the federal government has the power to tax, and because spending for education is for the general welfare, the government may attach any reasonable conditions to the expenditure it desires.

Question 3

May Congress delegate the power to regulate foreign commerce to POTUS?

Answer 3

Yes. The power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President.

EG - By authorizing the issuance of the Presidential executive order.

Question 4

When is a local government free to tax and regulate local aspects of a subject area NOT regulated by Congress?

Answer 4

If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce or unduly burden it.

Question 5

How does a state or local government law discriminate against interstate commerce?

Answer 5

By treating economic interests from within the state differently from economic interests from outside the state; for example, a local government that taxes an out of state manufacturer for a purely local benefit. These laws are almost always invalid under the Dormant Commerce Clause.

Question 6

When will a state or local government law unduly burden interstate commerce? What factors will a court consider?

Answer 6

A state or local law will be held to unduly burden interstate commerce if the locality’s need for the revenue does not outweigh the burden on interstate commerce. The Supreme Court will consider whether:

1) there is a substantial nexus between the activity or property taxed and the taxing state;

2) whether the tax is fairly apportioned, and

3) whether there is a fair relationship between the tax and the benefit the taxed party receives from the state.

Question 7

May a private party maintain a suit against a state government?

Answer 7

No. The 11th Amendment (sovereign immunity) prohibits federal courts from hearing most private actions against state governments. This prohibition includes actions in which the state is named as a party or in which the state will have to pay damages. Although Congress can remove sovereign immunity for actions created under 14A.

Question 8

Does 11A sovereign immunity prohibit private parties from maintaining a suit against a state official?

Answer 8

No. A private party may bring an action for damages personally OR to enjoin an officer from future conduct that violates federal law or the constitution, even if this will require prospective payment from the state. However, a suit against a state official is prohibited by sovereign immunity to the extent that it seeks retroactive damages.

Question 9

Is a local ordinance that imposes a residency requirement on the right to vote constitutional? Why or why not?

Answer 9

It depends. The right to vote is a fundamental right; it is subject to strict scrutiny. Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote. However, the Supreme Court has struck down longer durational requirements for lack of a compelling justification. Thus, a one-year requirement probably unconstitutionally impinges on the right to vote.

Question 10

If a critically acclaimed film has nudity and scenes involving sex, will a conservative town successfully argue the film is obscene and unprotected speech under 1A?

Answer 10

Not if it has artistic value.

1A protect the right to freedom of speech, which includes films. However, obscenity is unprotected.

Obscenity is a depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community standards:

(i) appeals to the prurient interest in sex;
(ii) portrays sex in a patently offensive way; and
(iii) using a national, reasonable person standard, does not have serious literary, artistic, political, or scientific value.

Question 11

May a state university prohibit a religious group practicing discrimination from using its classrooms for a meeting?

Answer 11

Yes.

While schools are generally not public forums, they may become a designated public forum by being held open to student groups for meetings. In that case, 1A may be violated if a college restricts use of its classrooms based on the content of a student group’s speech. To justify content-based regulation of otherwise protected speech, the government must show that the regulation is necessary to achieve a compelling state interest that cannot be satisfied by less restrictive means.

The SC has held a state’s interest in not allowing its facilities to be used by groups practicing discrimination of various types IS compelling. The denial of access to the student group based on the students’ religious principles, while it may be viewed as content-based discrimination, is the most narrowly drawn means of advancing that interest.

Question 12

When may conduct associated with speech in a public forum be regulated?

Answer 12

While the content of speech generally cannot be limited, the conduct associated with speech in public forums can be regulated by reasonable time, place, and manner restrictions. To avoid strict scrutiny and be upheld, such a regulation must be content neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication.

Question 13

May a state government restrict an alien from teaching at a state university? Is the same true of elementary and primary schools?

Answer 13

No, because it is not necessary to achieve a compelling state interest. IE - No compelling interest is served by prohibiting aliens from teaching at a state university.

However, the Supreme Court has upheld state statutes prohibiting aliens from teaching primary or secondary school on the rationale that teachers at the elementary and high school level have a great deal of influence over the attitudes of young students toward government, the political process, and citizenship.

Question 14

May a state government restrict an alien from participating in the functioning of the state government?

Answer 14

Probably yes, if it has a rational basis for doing so. If state discrimination against aliens relates to participation of aliens in the functioning of state government, the rational basis test applies. Because RBT is such a low bar, the challenger will have a hard time proving there is no rational basis from prohibiting aliens from participating in the functioning of a state government.

Question 15

Describe the pardon power granted to POTUS under Article 2.

Answer 15

Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision).

Question 16

What are the two exceptions to the rule that state regulation that discriminates or unduly burdens interstate commerce is invalid?

Answer 16

There are two exceptions to the rule that state regulation that discriminates or unduly burdens interstate commerce is invalid: (1) Congress gives it blessing, and (2) government is a market participant.

A state may regulate local aspects of commerce (i.e., intrastate commerce), but state regulation that discriminates against or substantially burdens interstate commerce may be held invalid under the Supremacy Clause, because of Congress’s very broad power to regulate interstate commerce under the Commerce Clause.

EG - a state statute, standing alone, might be invalid because its substantial burden on interstate commerce could have been found to outweigh any legitimate local interest in reducing eyestrain.

However, Congress’s power over interstate commerce is very broad, Congress MAY ALLOW a state to adopt legislation that would otherwise be invalid as an unconstitutional burden on interstate commerce by “blessing it” through federal law. By allowing the state regulation, it is actually exercising the federal commerce power; it simply allows for nonuniform (state-by-state) rules.

Question 17

When may P challenge an ordinance by asserting the rights of a third party?

Answer 17

A plaintiff may assert third-party rights if she has suffered injury and that injury adversely affects her relationship with third parties, resulting in an indirect violation of their rights.

Enforcing such an ordinance that causes an injury to P will, in turn, cause a potential violation of the rights of third parties where e.g., the law might violate their First Amendment right to join with other persons for expressive activity. Consequently, P is deemed to have standing to challenge the ordinance, and the court will reach the merits of the challenge.

Question 18

When will the US Supreme Court hear a case appealed from a state supreme court?

Answer 18

The Supreme Court’s appellate jurisdiction under 28 U.S.C. section 1257 extends to reviewing the decision of the highest court of a state where the validity of state legislation is called into question on the ground that it is unconstitutional or contrary to federal statutes. However, the Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. The Court will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision, because a different interpretation of the federal statutes would have no effect on the judgment rendered by the state court, so that the Supreme Court, in effect, would be rendering an advisory opinion.

Question 19

May Congress legislate that a federal court make a recommendation rather than a binding decision?

Answer 19

No, because such legislation permits the rendition of unconstitutional advisory opinions.

Article III of the United States Constitution establishes the basis for the judicial power of federal courts. It provides that the judicial power extends to “cases and controversies.” Although Congress has power to delineate the jurisdictional limits of Article III courts, it is bound by the standards of judicial power set forth in Article III as to subject matter, parties, and the requirement of “case or controversy.” Thus, Congress cannot require these courts to render advisory opinions or perform administrative or nonjudicial functions.

Question 20

When is a Congress grant under its spending power unconstitutional?

Answer 20

Congress may regulate states through the spending power by imposing conditions on the grant of money to state governments unless those conditions are not clearly stated, related to the purpose of the program, and are not unduly coercive.

EG - Congress threat to withdraw all federal funding if state does not adhere to condition is unduly coercive.

Question 21

May Congress legislate POTUS to send troops to an area of need?

Answer 21

No, because it violates separation of powers.

Although the President has no power to declare war (Congress does) Article II, Section 2 makes the President commander in chief of the military, which affords the President extensive power to deploy military forces against any enemy, foreign or domestic. Congress lacks such power. Therefore, where a statute directly infringes upon the President’s authority as commander in chief to make such orders as he deems proper with respect to the armed forces, it violates the doctrine of separation of powers.

Question 22

Does POTUS power to pardon extend to a person convicted in a state court?

Answer 22

No, never. POTUS power extends on to those convicted of federal offenses. The state governor has that power.

Question 23

Will a state statute requiring citizenship for state government civil engineer position be upheld?

Answer 23

No, unless the governmentcan show it is narrowly tailored to meet a compelling state interest.

State and local laws that classify persons based on alienage are subject to strict scrutiny unless the law is discriminating against alien participation in the functioning of the state government. In that case, the law will be upheld as long as it is rationally related to a legitimate government interest. Thus, a state can validly refuse to hire aliens as primary or secondary school teachers or police officers because these positions have a direct effect on the functioning of government. On the other hand, a state law requiring citizenship for all civil service positions was held to be invalid. Similarly, a state law requiring a notary public to be a citizen was struck down under the strict scrutiny standard because a notary’s responsibilities are essentially clerical.

Question 24

What factors will a court consider in determining whether procedural due process is required?

Answer 24

Fair procedure at a minimum requires an opportunity to present objections to the proposed action to a fair, neutral decisionmaker. Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing:

(i) the importance of the individual interest involved,
(ii) the value of specific procedural safeguards to that interest, and
(iii) the governmental interest in fiscal and administrative efficiency.

[Mathews v. Eldridge (1976)]

Question 25

Where a driver has had his DL suspended after three speeding tickets and as many hearings that merely determine whether he was the same person that was speeding, is the driver entitled to additional hearings by due process?

Answer 25

No.

Where a DL suspension is based on prior judicial determinations that traffic laws were violated, the driver has already had prior evidentiary hearings before unbiased decisionmakers on the significant factual issues involved. Thus, the governmental interest in keeping unsafe drivers off public roads and in not relitigating issues already fairly decided outweighs the driver’s interest in keeping her driver’s license.

Question 26

What is the standard of scrutiny used to satisfy scrutiny under the Contract Clause?

Answer 26

The Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest.

Question 27

When the FEDERAL government discriminated against a suspect class, what clause and amendment presents the strongest argument for a challenger of that law?

Answer 27

The Due Process Clause of the Fifth Amendment protects against action by the federal government. Although not expressly stated, this clause also provides an equal protection guarantee against federal action that generally applies to a similar extent that the Fourteenth Amendment Equal Protection Clause applies to the states.

Question 28

What constitutional provision is implicated when a state denies all religious clerics an opportunity to sit on a city council?

Answer 28

The Free Exercise Clause generally prohibits government from acting in a way that interferes with the free exercise of religion. The Supreme Court has found the Clause to provide almost absolute protection for religious belief.

EG - where a city is prohibiting clerics from serving on public boards, such an ordinance takes away a right of citizenship merely because a person has chosen to become a religious cleric. Such punishment of religious belief is prohibited, either absolutely or at least unless the discrimination is necessary to achieve a compelling government interest.

Question 29

When may a government regulation lawfully interfere whose religious beliefs prevent them from conforming their behavior to the requirements of the law?

Answer 29

A law will be upheld where it is a neutral law that is generally applicable and nothing indicates it was motivated by a desire to interfere with religion.

The Free Exercise Clause does not require exemptions from government regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. Unless the law was motivated by a desire to interfere with religion, it can be applied to regulate the conduct of one whose religious beliefs conflict with the law. Thus, a state is entitled to enforce such a regulation where it is a neutral law of general applicability.

Question 30

When will a government regulation on speech on courthouse steps be upheld?

Answer 30

When it is viewpoint neutral and reasonably related to a legitimate government purpose.

A court building and its grounds are considered a limited public forum or a nonpublic forum. The government can regulate speech in such a forum to reserve the forum for its intended use. Regulations will be upheld as long as they are (i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose. Thus, a challenger citizen would have the burden of proving that there was no reasonable basis for the regulation.

Question 31

May a court determine the sincerity of a person’s religious beliefs without violating 1A right to freedom of religion?

Answer 31

Yes. The Supreme Court has held that in determining whether a defendant’s conduct is privileged by First Amendment rights to freedom of religion, it is proper to consider whether the defendant’s religious beliefs were sincere.

Question 32

Define “public official” for purposes of a 1A defamation claim

Answer 32

The Supreme Court has held that 1A requires a public official or public figure suing for defamation to prove that the defendant had ACTUAL MALICE in making the defamatory statement. Further, the Court defined a public official as a public employee who has or reasonably appears to have substantial control over the conduct of public affairs.