Con Law

Question 1

Three criteriaof standing

Answer 1

Concrete injury that’s particular, causation, redressability

Question 2

Common standing doctrines

Answer 2

1. TAXPAYER STANDING
2. ORGANIZATIONAL STANDING
3. LEGISLATIVE STANDING
4. THIRD PARTY STANDING

Question 3

What is standing?

Answer 3

Standing is a question about WHO can bring a lawsuit, NOT substance of the claim.

Question 4

When can you sue?

Answer 4

Ripeness and mootness

The doctrines of ripeness and mootness matter at each stage of review, not just when the complaint is filed.

Question 5

Pullman abstention:

Answer 5

Pullman abstention: may abstain because there is UNSETTLED state law

Question 6

Younger abstention

Answer 6

may abstain for pending state CRIMINAL cases (unless obviously unconstitutional)

A federal court may invoke a variety of reasons to abstain from deciding a case properly before it. One situation arises under the Younger abstention doctrine, which applies when declaratory or injunctive relief is sought in federal court. This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:

involves an important state interest and
provides an adequate opportunity to litigate the federal issue(s).

Question 7

Burford abstention:

Answer 7

May abstain if parties are seeking injunctive relief that would interfere with a complex state regulatory scheme

Question 8

Colorado River abstention

Answer 8

may abstain if case is substantially SIMILAR to another case being heard in state court.

Question 9

Three powers that NEVER give Congress authority to pass a law?

Answer 9

The general welfare clause, police power (i.e. commandeering carjacking power of state), necessary and proper clause.

Question 10

WHAT ARE THE BIG POWERS OF CONGRESS?

Answer 10

1. Power to regulate commerce
2. Power to tax
3. Power to spend
4. Power to enforce Civil War amendments

Question 11

ARTICLE II =

Answer 11

EXECUTIVE BRANCH

Question 12

ARTICLE 1 =

Answer 12

CONGRESSIONAL

Question 13

ARTICLE 3:

Answer 13

JUDICIAL (SCOTUS)

Question 14

When does the Dormant Commerce Clause apply?

Answer 14

DCC issues only arise when (i) states are acting in ways that disadvantage each other, and (ii) Congress is silent (i.e., dormant). If Congress has passed a law in your fact pattern, you should not apply the DCC.

Question 15

DCC states can regulate a particular area of commerce if commerce is dormant as long as they don’t do one of three things:

Answer 15

1. Discriminate against out-of-state commerce
2. Unduly burden interstate commerce
3. Purposely regulate wholly out-of-state activity

Question 17

Extraterritoriality

Answer 17

State law that purposefully regulates conduct wholly outside state’s borders violates the DCC

Question 18

The Supremacy Clause

Answer 18

Provides that federal law trumps conflicting state law.
Allows federal law to run concerrently with state law if the laws do not conflict.

Question 19

What’s federal preemption and the three situations that overrides it? Think parent rule overrules a rule set by a babysitter.

Answer 19

1. Express Preemption (federal law says I’m in charge!)
2. Implied Preemption (Like fed law fills up whole playground, so no space left for state laws to play)
3. Conflict Preemption (two conflicting advice, can’t follow both)

Federal preemption is about the federal government’s authority to make laws that can be more important than state or local laws, depending on the situation

Question 20

For procedural due process, the ultimate question is not whether the government can take the interest away from you, but what process the government must give you to take that interest away.

Answer 20

For procedural due process, the ultimate question is not whether the government can take the interest away from you, but what process the government must give you to take that interest away.

Question 21

Who applies the standards of review? And what are they used for?

Answer 21

The standards of review are applied by courts, specifically judges, to determine whether laws or government actions are constitutional.

Question 22

Who has burden of proof for each scrutiny?

Answer 22

Strict Scrutiny: The government has the burden of proof.

Rational Basis Review: The challenger has the burden of proof.

Intermediate Scrutiny: The government has the burden of proof.

Question 23

What’s the 10th amendment?

Answer 23

Any power not given to the federal government belongs to the states and the people.

The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

Question 24

Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.

Answer 24

The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.

Question 25

What is an advisory opinion and why do federal courts not render them?

Answer 25

An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Federal courts do not render advisory opinions because federal courts only render decisions where an actual case or controversy exists.

Question 26

When is Congress able to regulate purely private conduct?

Answer 26

When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.

Question 27

What four requirements must be met in order for government regulation of expressive conduct to be upheld?

Answer 27

(### Regulation Requirements:
1. Government Power: The government has the authority to make the rule.
2. Important Interest: The rule supports a significant government goal.
3. Unrelated to Ideas: The goal isn’t about stopping ideas.
4. Minimal Impact: The rule affects speech as little as possible.
i) The regulation is within the government’s power to enact;
(ii) The regulation furthers an important governmental interest;
(iii) The governmental interest is unrelated to the suppression of ideas; and
(iv) The burden on speech is no greater than necessary.

Question 28

What’s the 11th amendment?

Answer 28

The Eleventh Amendment’s text prohibits the federal courts from hearing certain lawsuits against states. The Amendment has also been interpreted to mean that state courts do not have to hear certain suits against the state, if those suits are based on federal law.

Question 29

List three fundamental rights.

Answer 29

(i) The right to travel;
(ii) The right to vote; and
(iii) The right to privacy (including marriage, sexual relations, child rearing, and the right of related persons to live together).

Question 30

Name three actions not barred by the Eleventh Amendment.

Answer 30

The Eleventh Amendment does not bar:
(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances

Question 31

What is a line item veto?

Answer 31

A line item veto is where the President refuses only part of a bill and approves the rest. Line item vetos violate the Presentment Clause and are therefore unconstitutional.

Question 32

What is a legislative veto, and is it constitutional?

Answer 32

Purpose: Allows Congress to nullify executive actions.

Key Point: Congress can reject executive decisions, but this was ruled unconstitutional in INS v. Chadha (1983).

Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. Such acts are unconstitutional.

Question 33

To have standing, a plaintiff bears the burden of establishing three elements. Name the elements.

Answer 33

(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).

Note: The federal judiciary has also established a ““prudential standing”” requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.

Question 34

What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?

Answer 34

(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, citizenship status

Question 35

Under Equal Protection, when is intermediate scrutiny applied?

Answer 35

When a classification is based on gender or status as a nonmarital child (legitimacy)

Note: In gender cases, there must be an ““exceedingly persuasive justification”” for the classification.

Question 36

When can the states tax the federal government?

Answer 36

When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)

Question 37

Compare and contrast ripeness and mootness.

Answer 37

Ripeness and mootness both deal with the timeliness of an action for judicial review purposes. Ripeness is an action that is brought too soon, and mootness is an action that is brought too late, as there is no longer a case or controversy.

Question 38

Name the five categories where the government is permitted to restrict speech on the basis of content.

Answer 38

1. Obscenity
2. Incitement to violence
3. Fighting words
4. Defamation
5. Commercial speech

Question 39

In the absence of federal regulation, state regulation of commerce is valid so long as: (Name the three rules)

Answer 39

(i) There is no discrimination against out-of-state interests;
(ii) The regulation does not unduly burden interstate commerce; and
(iii) The regulation does not purposefully and deliberately apply to wholly extraterritorial activity.

Question 40

When does federal law expressly preempt state law?

Answer 40

When (i) the Constitution makes federal power exclusive (such as the powers to coin money or declare war), or (ii) when Congress has enacted legislation that explicitly prohibits state regulation in the same area

Question 41

In what two scenarios does private conduct amount to state action?

Answer 41

(i) When a private person carries on activities that are traditionally performed exclusively by the state; and
(ii) When the government is significantly involved in private discrimination.

Question 42

How is the President’s veto power exercised?

Answer 42

The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President’s veto with a 2/3rds vote in each house.

Question 43

Define strict scrutiny.

Answer 43

The law must be the least restrictive means to achieve a compelling governmental interest.

Question 44

Under Equal Protection, in what two instances does the court apply the strict scrutiny test?

Answer 44

When the state action in question involves a fundamental right or suspect classification.

Question 45

What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?

Answer 45

State action

Question 46

What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?

Answer 46

The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.

Question 47

Define rational basis.

Answer 47

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.

Note: This test generally results in the law being upheld.

Question 48

Define intermediate scrutiny.

Answer 48

To be constitutional, the law must be substantially related to an important governmental interest.

Question 49

A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:

Answer 49

1. Connection: There must be a strong link between the state and what’s being taxed.
   
   2. Fair Share: The tax must be divided fairly among states.
   3. Related Services: The tax must relate to the services the state provides.

(i) There is a substantial nexus between the taxing state and the property or activity to be taxed;
(ii) There must be fair apportionment of tax liability among states; and
(iii) The tax must be fairly related to the services provided by the taxing state.

Question 50

What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?

Answer 50

Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive

Question 51

The Supreme Court has sorted government property that is open for speech into three categories.

What are the three categories?

Answer 51

1. Traditional public forums
2. Designated public forums
3. Nonpublic/limited public forums

Question 52

Apply this to the law:

AutoCo can only censor or limit free speech if their rules meet all of these conditions:

Authority: They have the legal right or power to make the rule.
Important Purpose: The rule serves a significant and important reason (like public safety or cleanliness).
Unrelated to Ideas: The rule is not meant to target or stop specific ideas or messages. It must apply equally to all kinds of speech.
Minimal Impact: The rule limits free speech as little as possible. It should be narrowly tailored to achieve its purpose without overly restricting people’s ability to express themselves.

Answer 52

AutoCo creates a rule that says no one can leave flyers on the ground in the park.

Meeting the Four Conditions:

Authority: AutoCo has the authority to make rules for the park since they manage it.
Important Purpose: The rule serves the important purpose of keeping the park clean and safe for all visitors.
Unrelated to Ideas: The rule does not target specific ideas or messages. It applies to all flyers, no matter what they say.
Minimal Impact: The rule is narrowly tailored. It does not ban all leafleting but only stops people from leaving flyers on the ground, which helps prevent littering without completely stopping the distribution of flyers.

Here, the anti-litter rule is within Oakwood’s power to enact rules as a local government. The rule is unrelated to the suppression of ideas because it prohibits all leafleting that results in litter, regardless of what the leaflets communicate. But Oakwood’s interest in litter-free streets is likely insufficient to qualify as an important government interest. Further, a ban on all leafleting burdens speech more than is necessary to address littering issues. In other words, the ban is not narrowly tailored to protect communication of information and opinion through leafletting. Therefore, the father’s arrest for trespass pursuant to his violation of the Oakwood leafleting rule likely violates the First Amendment as applied through the Fourteenth Amendment.

Question 53

The ex post facto clauses prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect (i.e., ex post facto laws).

Answer 53

The ex post facto clauses prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect (i.e., ex post facto laws).

Question 54

the 14th amendment due process clause requires judges provide what?

Answer 54

The Fourteenth Amendment due process clause requires that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property. As a result, a judge must recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists. A failure to do so violates due process.

Question 55

16th amendment

Answer 55

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Question 56

enclave clause in Article I, Section 8.

Answer 56

The Constitution provides that Congress shall have the sole and exclusive authority over the federal city, known as the District of Columbia, which is an area not exceeding ten miles square. Additionally, Congress has authority over all places ceded by the states for the purpose of building forts, dockyards, and other needful buildings. This is outlined in Article I, Section 8, Clause 17 of the U.S. Constitution.

Question 57

The equal protection component of the Fifth Amendment applies when the federal government discriminates against similarly situated persons (e.g., residents v. nonresidents).

Answer 57

The equal protection component of the Fifth Amendment applies when the federal government discriminates against similarly situated persons (e.g., residents v. nonresidents). Since this statute does not impact a fundamental right or discriminate against a protected class, it need only satisfy rational basis review. The statute can do so because it is rationally related to a legitimate government interest (encouraging business).

Answer 58

The taxing and spending clause gives Congress the power to impose indirect taxes (e.g., sales tax), so long as they are uniformly applied in every state (i.e., geographically uniform) and reasonably related to revenue production.

Answer 60

The Tenth Amendment grants states any power that is not expressly given to the federal government by the Constitution—e.g., the power of state courts to order the payment of child support. But when exercising such powers, states must comply with other constitutional provisions—e.g., the full faith and credit clause.

Question 61

Unprotected speech

Answer 61

clear and present danger, fighting words, true threats, obscenity

Question 62

Types of less-protected speech

Answer 62

1. Commercial speech
2. School speech
3. Sexual or indecent speech

Question 63

The Contracts Clause:

Answer 63

A state may not pass
legislation that substantially impairs preexisting
contracts unless the law serves an important
and legitimate public interest and it is
reasonable and narrowly tailored to promoting
that interest. Tip: this is usually the wrong
answer on the MBE.

Question 64

Ex post facto laws:

Answer 64

neither states nor the
federal government may pass legislation that
retroactively alters a criminal law in a
substantially prejudicial manner for the purpose
of punishing a person for some past activity.

Question 65

Bill of attainder:

Answer 65

neither the state nor the
federal government may pass legislation that
specifically identifies people to be punished
(civilly or criminally) and imposes punishment
without a judicial trial.

Question 66

Unconstitutional conditions:

Answer 66

The government cannot require someone to give up their constitutional rights in order to receive a government benefit.

Question 67

What’s subject to strict scrutiny?

Answer 67

(1st amendment rights) Voting, travel, interstate travel

(suspect classes) race/ethnicity, national origin, citizenship

Question 68

When can Congress can delegate incidental legislative powers to federal agencies ?

Answer 68

Congress can delegate incidental legislative powers to federal agencies if it provides an intelligible principle to guide the agency—i.e., a clear statement defining (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency’s authority.

Answer 69

The government cannot impose content-based restrictions on speech in public forums unless it can satisfy strict scrutiny—i.e., show that the restrictions are necessary and narrowly tailored to achieve a compelling government interest.

Question 70

What’s the twenty-first amendment?

Answer 70

The Twenty-first Amendment grants states broad authority to regulate the use of alcohol within their borders. This authority permits a state to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities). As a result, the Twenty-first Amendment provides the best source of authority for enacting an ordinance that bans the sale of alcoholic beverages with an alcohol content in excess of 10%.

Question 71

What’s the Article IV full faith and credit clause ?

Answer 71

The Article IV full faith and credit clause requires states to respect the public acts, records, and judicial proceedings of other states. Under this clause, a state court must recognize and enforce judicial decisions rendered by a court in another state when:

that court had personal jurisdiction and subject-matter jurisdiction
the case was decided on its merits—i.e., the substantive elements or grounds of a claim or defense—and
a final judgment was entered.

Question 72

Pullman: Let state courts clear up confusing state laws first.
• Younger: Don’t interfere with state criminal cases.
• Burford: Don’t mess with complex state regulations.
• Colorado River: Avoid duplicate cases in state and federal courts.
• Thibodaux: Let state courts handle important unclear state laws.
• Rooker-Feldman: Federal courts can’t change state court decisions.

Question 73

What do federal courts use abstention for?

Answer 73

Federal courts use abstention doctrines to avoid unnecessary interference with state court matters, to respect the role of state courts, and to promote judicial efficiency. Each type of abstention applies in specific situations where state interests, regulatory schemes, or concurrent proceedings are involved.

Question 74

What do federal courts use abstention for?

Answer 74

Federal courts use abstention doctrines to avoid unnecessary interference with state court matters, to respect the role of state courts, and to promote judicial efficiency. Each type of abstention applies in specific situations where state interests, regulatory schemes, or concurrent proceedings are involved.

Question 75

Under the Article I suspension clause, a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control (e.g., the noncitizen here).

Answer 75

Under the Article I suspension clause, a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control (e.g., the noncitizen here).

Question 76

The U.S. Supreme Court has appellate jurisdiction over decisions by (1) lower federal courts and (2) the highest state courts when the decision turns on federal law. But the Article III exceptions clause gives Congress the power to expand, regulate, or make exceptions to this jurisdiction.

Answer 76

The U.S. Supreme Court has appellate jurisdiction over decisions by (1) lower federal courts and (2) the highest state courts when the decision turns on federal law. But the Article III exceptions clause gives Congress the power to expand, regulate, or make exceptions to this jurisdiction.

Question 77

A state law that treats similarly situated people differently (e.g., property owners v. nonproperty owners) violates the Fourteenth Amendment equal protection clause if it lacks sufficient justification. A discriminatory law that substantially impacts a fundamental right (e.g., right to vote) is justified only if it passes strict scrutiny. This requires the state to prove that the law is the least restrictive means (i.e., necessary) to achieve a compelling state interest.

Question 78

he U.S. Supreme Court (SCOTUS) has appellate jurisdiction over most final state-court decisions that present a federal question. But SCOTUS cannot exercise jurisdiction over, and must refuse to hear the appeal of, such decisions if they are based on adequate and independent state grounds. This occurs when:

state law completely resolves the matter, such that the application of federal law would not affect the outcome of the case (adequate) and

the state court did not rely on federal law to decide the state-law issue (independent).

Question 79

The property clause of Article IV, Section 3.
The property clause of Article IV

Answer 79

The property clause of Article IV gives Congress the power to dispose of and regulate federally owned lands. But this clause does not give Congress the power to acquire those lands.

Question 80

The contracts clause of Article I, Section 10.

Answer 80

The contracts clause of Article I restricts the ability of state legislatures to impair existing contracts. But this clause does not apply to Congress or federal statutes that spend federal revenue (as seen here).

Question 81

The naturalization clause of Article I, Section 8.

Answer 81

The Article I, Section 8 naturalization clause grants Congress the authority to enact laws that regulate naturalization—i.e., the process through which any noncitizen may obtain U.S. citizenship. But Congress must comply with other constitutional provisions when exercising this authority, including the Fifth Amendment due process clause.

Question 82

The comity clause of Article IV.

Answer 82

The Article IV comity (i.e., privileges and immunities) clause generally prohibits states from discriminating against citizens of other states. But it does not apply to the federal government.

Answer 83

The Tenth Amendment prohibits the federal government and its agencies from commandeering state or local governments (e.g., counties) by requiring them to (1) enact state or local laws or (2) enforce federal laws.

Answer 84

Article II executive powers

Domestic powers

Manage federal executive agencies & officers
Execute federal laws
Recommend legislation to Congress
Sign or veto bills
Appoint/remove federal officers
Prosecute & grant pardons for federal crimes
Foreign powers

Serve as commander in chief
Negotiate/enter treaties (with 2/3 Senate approval) & executive agreements
Recognize foreign governments
Appoint/receive foreign diplomats

Answer 85

The First Amendment shields the media from liability for publishing lawfully obtained private facts and other truthful information that involves a matter of public concern.

Answer 86

Under Article III of the U.S. Constitution, a plaintiff may file an action in federal court when the court has subject-matter jurisdiction—i.e., the power to decide the case before it. A federal court has subject-matter jurisdiction when a case or controversy arises under the Constitution, a federal law, or a treaty (i.e., federal-question jurisdiction).

Question 87

The Supreme Court applies a four-part test to determine whether a state tax comports with the Commerce Clause, what are they?

Answer 87

The Supreme Court applies a four-part test to determine whether a state tax comports with the Commerce Clause: (1) there must be a substantial nexus between the activity taxed and the taxing state (here, that requirement is satisfied as the taxing state is both supplying the electricity and paying for clean-up), (2) the tax must be fairly apportioned according to a rational formula (here, tax is calculated by usage), (3) the tax may not provide a direct commercial advantage to local businesses over interstate competitors (nothing in the fact pattern indicates that this factor is present), and (4) there must be a fair relationship between the tax and the service provided (here, the tax is calculated in direct proportion to usage and is used for clean-up efforts related to production of electricity).

Question 88

What standard of review is used for citizenship?

Answer 88

When reviewing government action under equal protection theories, a court applies one of three levels of review, depending on the classification of persons or the type of right concerned. The strict scrutiny standard typically applies if the governmental action involves a fundamental right or suspect classification, including citizenship status. A court will generally apply the strict scrutiny test and strike down state laws that discriminate against resident noncitizens by requiring U.S. citizenship, such as laws prohibiting resident noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs. In this case, a court would likely strike down the law under the strict scrutiny test.