Con Law

Question 1

Commerce Clause

Answer 1

The commerce clause gives Congress broad regulatory authority over must activities involving two or more states. This includes the power to regulate:
1. channels
2. instruments
3. people and things
4. Instate activities that substantially affect interstate commerce

Question 2

Taxing and Spending

Answer 2

Taxing and spending clause has been broadly interpreted to give Congress the power to spend for the general welfare not just to care out its enumerated powers.

Question 3

Exclusive executive Powers

Answer 3

• Nomination principal officers
• veto bills
• prosercute and pardon federal offenses
• communicate and negotiate with foreign governments
• recognize foreign governments
  enter executive orders

Question 4

Impeachment executive power

Answer 4

only federal offenses except in cases of impeachment

Question 5

Dormant Commerce Clause

Answer 5

Negative implication of the commerce clause. States cannot unduly burden interstate commerce. An undue burden can arise from a discriminatory law. Under the Pike balencing test, a nondiscriminatory law will be upheld unless the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.

Question 6

Pike Balancing Test

Answer 6

Under the Pike balancing test, a nondiscriminatory law will be upheld unless the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.

Question 7

When is a private actor a state actor?

Answer 7

1. a private actor performs a service that is traditionally a government function. or
2. the government is significantly involved in the private actor’s actitities.

Significant involvement exists when 1. mutually benefit, or (2) nexus, or (3) intertwined.

Question 8

Substantive due process

Answer 8

Based on the principles that the laws should be reasonable and not arbitrary. A state cannot deprive individuals of life, liberty, or property without adequate justification. Adequete justification deprives on the right deprived. If ordinary then rational basis, if fundamental then strict scrutiny.

Question 9

Rational basis

Answer 9

the law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest

Question 10

Strict scrutiny

Answer 10

Law is presumed invalid until the government shows that the law is necessary. to achieve a compelling government interest.

Question 11

Equal Protection of the 14th amendment

Answer 11

constitutional safeguad that individuals or groups can use to challenge the laws that treat similarly situation people differently.

Question 12

Quasi Suspect Class

Answer 12

Gender and Legitimacy get intermediate scruitiny

Question 13

Intermediate scrutiny

Answer 13

Government must prove that the statute substnantially related to an important government interest.

Question 14

Article IV privleges and immunities clause

Answer 14

prohibits states from discriminating against citizens of other states by denying them a right of state citizenship.

Question 15

Physical Taking

Answer 15

Occurs when the gov’t permanently and physically occupies private property. Bars the gov’t from taking private property unless (1) the taking is for public use and (2) the owner receives just compensation.

federal gov’t- fifth amendment
state- 14 due process

Question 16

Establishment Clause

Answer 16

prohibits the government from expressing a preference for a particular religion by participating in or aiding religious affairs. But the gov’t may engage that indirectly aids a religious organization if that conduct comports wit historical practices and understandings of the establishment clause.

Question 17

Free excercise Clause

Answer 17

Prohibits gov’t interfernce with discrimination against sincere religious belief. The gov’t determines whether a religious belief is sincere, not reasonable.

prohibits government interference with a religious organization’s right to shape its faith and mission. As a result, the Supreme Court has recognized the ministerial exception, which protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.

Question 18

Content based free speech restrictions

Answer 18

presumptively invalid and will be upheld only if they survive strict scrutiny. Meaning the gov’t must prove that the restriction is necessary and narrowly tailored to acheive a compelling governmental interest.

Question 19

Eleventh Amendment

Answer 19

The eleventh Amendment prohibits foreign governments and private parties from suing a state in federal court without the state’s consent. The immunity extends to suits against state officials for a violation of state low

Question 20

Supreme Court jurisdiction

Answer 20

SCOTUS may use its discretionary appellate jurisdiction and grant a writ of cert to review a final state court judgement. But SCOTUS can only review such judgements that are based on federal law, so it cannot review a judgement based on adequate and independent state grounds. This happens when state law fully resolves the matter AND the state corut did not rely on federal law.

Question 21

Adequate and Independent state grounds

Answer 21

State law fully resolves the matter and the state court did not rely on federal law.

Question 22

Abstention doctrine

Answer 22

Requires that a federal court abstain from issuing a declaratory judgement or injunction if doing so would interfere with a pending state criminal or particular civil proceeding that involves 1. an important state interest and 2. an adequate opportunity to litigate federal issues.

Question 23

Article III Standing

Answer 23

A federal court will not hear a case unless the plaintiff has standing. To have standing, the plaintiff must prove:

(1) injury-in-fact – the plaintiff suffered concrete and particularized harm or an immediate threat thereof
(2) causation – that harm was caused by the defendant’s challenged action
(3) remedy– a judicial decision in the plaintiff’s favor will likely remedy the harm

Question 24

Export Clause

Answer 24

Prohibts federal taxation of
exported goods and services and activites closely related to the export process.

Question 25

Militia Clause

Answer 25

Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.

Question 26

Congressional enumerated powers.

Answer 26

Any legislation enacted by Congress must stem from its enumerated powers.

Question 27

Tenth Amendment

Answer 27

Prohibits Congress from commandeering state or local governments by requiring them to enforce federal laws. This amendment limits congress’ power to regulate interstate commerce.

Question 28

Judicial absolute immunity

Answer 28

Judges possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—unless the court clearly lacked subject-matter jurisdiction at the time the action was taken.

Question 29

Foreign Commerce

Answer 29

The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce—including the power to impose tariffs (i.e., taxes) on imported goods.

Question 30

Express preemption

Answer 30

occurs when the Constitution or federal law explicitly bars state regulation.

Question 31

Implied preemption

Answer 31

when there is no room for state regulation (field), it is nearly impossible to comply with both laws (direct conflict), or the state law frustrates the federal law’s purpose (indirect conflict).

Question 32

Full Faith and credit clause

Answer 32

Under the full faith and credit clause, a state court must recognize and enforce a judicial decision by a court in another state when (1) that court had personal and subject-matter jurisdiction, (2) the case was decided on its merits, and (3) a final judgment was entered.

Valid, final judgement, on the merits.

Question 33

Procedural Due Process

Answer 33

When a state attempts to deprive an individual of life, liberty, or property, the Fourteenth Amendment requires that the state provide the individual with procedural due process. To determine the process due, courts balance the government’s interest against the individual’s interest.

Question 34

Regulatory Taking

Answer 34

Occurs when the government (1) substantially restricts the use of private property or (2) deprives an owner of all economically beneficial use of the property but the owner retains possession of it.

Question 35

Freedom of the press

Answer 35

generally prohibits the government from restricting the right to publish lawfully obtained, truthful information about matters of public significance. A government action that abridges this right is presumptively unconstitutional and must survive strict scrutiny. This requires the government to prove that its action was the least restrictive means (i.e., narrowly tailored) to achieve a compelling government interest.

Question 36

P has standing

Answer 36

P has standing when 1. challenging congress’ tax and spending and 2. alleges a constituional limitation on that power

Question 37

Freedom of Association

Answer 37

The government can interfere with the First Amendment freedom of association by punishing persons who (1) are active members of a subversive organization, (2) know of the organization’s illegal objectives, and (3) specifically intend to further those objectives.

Question 38

Speech and Debate Clause

Answer 38

protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. However, this protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts.

Question 39

Executive Agreement vs. Federal Staute

Answer 39

When a federal statute conflicts with an executive agreement, the federal statute takes precedence over the executive agreement.

Question 40

Class Action Basic Requirements

Answer 40

C- Commonality (common question of law or fact)
A- Adequacy (representatives must fairly represent interest of class)
N- Numerisity (class member must be numerous)
T- Typicality (claim or defenses must be typical of class)

Question 41

Class Action under Fairness Act of 2005

Answer 41

makes it easier to satisfy subject matter for large classes.

i. more than 100 members
ii. primary D is not states
iii. no certain securities
iv. aggregate amount more than $5M
v. Minimum diversity exisits- any members of a class is citizens of a state different from any defendant