CON Law

Question 1

What does Article I, Sec. 2 require in the Constitution

Answer 1

All direct taxes be apportioned among the states based on their population, eg. the tax on tickets for air travel is not a direct tax, but rather an indirect tax.

Question 2

How can a tax be constitutional

Answer 2

As long as a tax has a reasonable relationship to revenue production, Congress may exercise its power to tax for any public purpose.

Congressional power to tax is not limited to activities over which Congress otherwise has the power to regulate, such as interstate commerce.

Question 3

Which one takes precedence when a federal statute conflicts with an executive agreement

Answer 3

The federal statute takes precedence over the executive agreement

Question 4

Does the President have unlimited power to enter into executive agreements with foreign nations?

Answer 4

the executive agreement is subject to federal statutes

Question 5

a federal statute and a federal treaty which one takes precedence

Answer 5

When the two conflict, whichever was enacted more recently would govern

federal actions, whether statutes, treaties, or executive agreements, take precedence over state laws.

Question 6

What are the standards for classifications involving equal protection (Citizens and Lawful residents)

Answer 6

Courts will generally apply the strict scrutiny test and strike down state laws that discriminate against noncitizens, such as laws prohibiting noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs.

A growing exception exists, however, for state laws that restrict or prohibit a noncitizen’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest, and are generally upheld as preventing noncitizens from having a direct effect on the functioning of the government.

Question 7

What is a bill of attainder

Answer 7

A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial.

Article I, Sections 9 and 10 forbid the federal government and the states, respectively, from enacting such “legislative trials.” Barring particular individuals from government employment qualifies as punishment under the prohibition against bills of attainder.

Question 8

What is an ex post facto law

Answer 8

a retroactive change to a criminal or penal law

Question 9

First Amendment Speech does not protect which rights

Answer 9

child pornography. Because of the government’s compelling interest in protecting minor children from exploitation, the sale, distribution, and even private possession of child pornography may be prohibited, even if the material would not be obscene if it involved adults.

Question 10

Can the congress regulate mere possession of certain goods?

Answer 10

Congress has broad power under the Commerce Clause to regulate interstate commerce. This power extends to privately produced and consumed items when those items have a substantial impact on interstate commerce, provided that Congress has adduced facts that establish this impact

Question 11

What is a Writ of Habeas Corpus

Answer 11

A court order that a person in custody be brought before the court to determine if his/her detention is legal.

Only a federal court can issue a writ of habeas corpus to challenge that person’s detention.

See Supremacy clause

Question 12

The Eleventh Amendment

Answer 12

Bars private parties and foreign governments from suing state officials in federal court for violations of federal law while acting in their official capacities.

Does not bar the US gov from prosecuting state officials for violating federal law.

Question 13

First Amendment Freedom of Press

Answer 13

Protects the right of the press to publish lawfully obtained and truthful information about matters of public concern.

Does not shield the press from generally applicable laws

Question 14

What does the political question doctrine prohibit

Answer 14

The court created six factors with differing levels of importance to consider in finding a political question: “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question” Adjudicating political questions

Question 15

What presents nonjusticiable political question

Answer 15

1) the Constitution has reserved decision-making on an issue to the executive or legislative branch and/or

2) the matter is inherently not one that the judiciary can decide- ie, there is a lack of judicially discoverable and manageable standards to resolve the issue.

Question 16

Diplomatic recognition power

Answer 16

A power reserved to the executive branch but courts have the power to determine interbranch disputes involving foreign affairs when they concern the validity of a federal statute.

Question 17

What factors lead to a substantial effect on intestate commerce

Answer 17

1) economic in nature (substantial effect is presumed)

2) Regulation has a jurisdictional element that limits its reach to activities with a direct connection to or effect on interstate commerce

3) there are express congressional findings concerning the activities’ effect

4) Strong link between the regulated activities and the effect on interstate commerce

Question 18

Appointment and removal of executive/federal officers

Answer 18

Question 19

Congress’s taxing and spending clause

Does money need to be spent in the specific way

Answer 19

Question 20

The supremacy commerce clause

Answer 20

States cannot discriminate against or otherwise unduly burden interstate commerce.

Non discriminatory laws generally upheld unless burden on the interstate commerce clearly exceeds its local benefits

Question 21

When will a private entities’s action subject to the same constitutional limit as government entities

State action doctrine

Answer 21

Question 22

Levels of scrutiny under equal protection clause

Answer 22

Question 23

Federal Immunity from State tax/regulation

Answer 23

Question 24

Freedom of Association

Answer 24

Question 25

Which Amendment limits excess fines

Answer 25

Question 26

What are the exclusive executive powers

Answer 26

Question 27

Under what condition is a state taxation of interstate commerce valid

Answer 27

Not a plenary or absolute power

Question 28

When is exercise of state police power reasonable

Answer 28

Question 29

What is original jurisdiction and when Scotus has it

Answer 29

Question 30

What scrutiny standard is federal classifications based on citizenship subject to

Answer 30

rational basis

Question 31

Mootness exception

Answer 31

under the mootness exception for an action that is capable of repetition yet evading review, then it is not moot

Question 32

Can a limited public forum like a public school allocate access to facilities and funds among student groups with restrictions on the group

Answer 32

Yes public school, as a limited public forum, may allocate access to school facilities and funds among student groups when the allocation is done in a manner that is viewpoint neutral.

Question 33

What is a public forum

Answer 33

A “public forum” may be traditional—those that are historically associated with expression, such as sidewalks, streets, and parks—or designated—those that the government has opened for public use, such as civic auditoriums. In such public forums, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.

Question 34

What is a non public forum

Answer 34

A nonpublic forum is essentially any public property that is not a traditional or designated public forum, such as government offices, schools, jails, and military bases. The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.

Question 35

Ripeness requirement

Answer 35

Under the ripeness doctrine, which is grounded in part on the “case or controversy” requirement of Article III, Section 2, a federal court will not consider a claim before it has fully developed, as doing so would be premature, and any potential injury would be speculative.

Question 36

11th amendment

Answer 36

Sates and state agencies immune from suit

Question 37

13th amendment

Answer 37

Congress has the power to adopt legislation rationally related to eliminating the “badges or incidents” of slavery. This power has been broadly interpreted to allow Congress to regulate both private and government action, including racial discrimination by private parties. Therefore, because this statute is rationally related to the elimination of racial discrimination, it is constitutional.

Question 38

Article IV Section 3 power

Answer 38

gives Congress the power to make rules and regulate the territory and property belonging to the U.S.

Question 39

What scrutiny standard are statutes limiting campaign contributions subject to

Answer 39

Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be “closely drawn” to correspond with a sufficiently important interest. Laws may limit contributions to individual candidates, but not to ballot measures.

Question 40

Does congress has plenary power over non-citizens. Entry vs Deportation

Answer 40

Non-citizens have no right to enter the United States and may be refused entry for reasons such as their political beliefs.

Note that had the facts mentioned that the actor was a resident non-citizen threatened with deportation rather than a non-citizen denied entry into the country at all, he would have been subject to deportation, but only after notice and a hearing.

Question 41

Impairment of contract clause application

Answer 41

the Impairment of Contract Clause only applies to state legislative state action.

Question 42

Federal Preemption rules

Answer 42

Federal preemption of a state statute may be implied as well as expressly stated.

preemption is disfavored, and thus a federal law is narrowly read to avoid preemption when possible.

Question 42

What triggers intermediate scrutiny

Answer 42

To trigger strict or intermediate scrutiny, there must be discriminatory intent—whether shown by the very language of the law, its application, or the motive behind the law—on the part of the government. The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient to trigger strict or intermediate scrutiny.

Question 43

Requirement for government employee’s free speech right

Answer 43

When a government employee contends that his rights under the Free Speech Clause of the First Amendment have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern. In determining whether a government employee is speaking pursuant to his official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. When a public employee is speaking about a matter of public concern as a citizen rather than as employee, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs.

Question 44

At will public employee dismissal

Answer 44

Although an at-will public employee may not have a legitimate property interest in continued public employment and may generally be dismissed without cause, even an at-will employee may not be dismissed for reasons that in and of themselves violate the Constitution, such as in retaliation for protected speech.

Question 45

How can a state restrict primary voting system

Answer 45

A state can require a semi-closed primary system, in which only registered party members and independents can vote in the party’s primary, even if the party wants to permit anyone to vote.

a state may not prohibit a political party from allowing independents as well as party members to vote in its primary (i.e., a semi-closed primary).

a state is not required to allow all registered voters to vote in a party’s primary (i.e., an open primary), even if the party wants to allow them to do so.

a state need not accommodate each political party’s wishes as to who can vote in its primary election.

Question 46

The adequate and independent state grounds doctrine

Answer 46

The Adequate and Independent State Grounds Doctrine operates to forestall review by the U.S. Supreme Court of a final state-court judgment based on state law that is independent of federal law and adequate to support the judgment.

A judgment by a state court may be adequate even if it prevents a party from litigating a federal right on the basis of a state procedural rule.

The rule may even permit the state court to exercise discretion so long as the rule is not being utilized to discriminate against claims of federal rights.

Question 47

Can Congress legislate for the general welfare

Answer 47

No but state police power can

Question 48

Dormant commerce clause exception

Answer 48

prohibits states from discriminating against out-of-state commerce, unduly burdening interstate commerce, or regulating extraterritorial activity. A state law discriminates against out-of-state commerce if it protects a local interest at the expense of out-of-state competitors, and will be held unconstitutional unless the state can prove that a legitimate state interest is being served that cannot be served by non-discriminatory legislation.

Question 49

Doctrine of eminent domain

Answer 49

Only applies if private land is being taken for a public purpose.

Eminent domain refers to the power of the government to take private property and convert it into public use, referred to as a taking. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.

Question 50

What factors determine the amount of process due

Answer 50

(i) the private interest affected by the governmental action;

(ii) the risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards;

and (iii) the burden involved in providing the additional process.

A state has the burden to demonstrate a compelling interest justifying its actions when a fundamental right is at issue.

Question 51

What settings do procedural due process apply

Answer 51

Procedural due process only applies in quasi-judicial or adjudicatory settings, and not with respect to the adoption of general legislation.

a consequence of a legislative act rather than an adjudicatory act does not trigger due process

Question 52

When will a public taking transfer to private party be permissible under the

Answer 52

provides that a government may seize private property not only for its own direct use, but also in order to transfer the property to another private party. Such a seizure is permissible if it is rationally related to a conceivable public purpose.

Question 53

What is an exaction

Answer 53

An exaction occurs when a local government exacts promises from a developer, such as setting aside a portion of the land being developed for a park, in exchange for issuing the necessary construction permits. Moreover, an exaction does not necessarily constitute an unconstitutional taking.

Question 54

When can a federal court stay a suit

Answer 54

Question 55

Justicability

Answer 55

Question 56

Equal protection federal law citizenship

Answer 56

Question 57

When can a federal or state legislator have standing to challenge the constitutionality of government action

Answer 57

Question 58

15th amendment

Answer 58

The Fifteenth Amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted.

Question 59

24th amendment

Answer 59

the Twenty-Fourth Amendment is narrowly focused on the prevention of the payment of a fee in order to vote (i.e., a poll tax) in an election for federal office.

Question 60

Section 5 of the Fourteenth Amendment.

Answer 60

The Section 5 Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment, as long as there is “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. Congress may override state government action that infringes upon Fourteenth Amendment rights if the “congruence and proportionality” test is satisfied, but it may not regulate wholly private conduct under this amendment.

Question 61

Is there a federal equal protection clause?

Answer 61

There is no federal equal protection clause. Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment. However, this only means that discrimination by the federal government is subject to the same standard as discrimination by the states—it does not give Congress the power to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment.

Question 62

Is airport terminal a public forum?

Answer 62

No

Question 63

11th amendment barring unconsented private suits against a state for retrocactive money damages?

Answer 63

Congress may abrogate state immunity from liability if it is clearly acting to enforce rights created by the remedial provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments (i.e., the Civil War Amendments), and does so expressly.

Question 64

Taxing power public purpose

Answer 64

As long as a tax has a reasonable relationship to revenue production, Congress may exercise its power to tax for any public purpose. Answer choice A is incorrect because the Congressional power to tax is not limited to activities over which Congress otherwise has the power to regulate, such as interstate commerce.

Question 65

How can a treaty be treated as federal law

Answer 65

Under the Supremacy Clause, a state is required to follow federal law when it conflicts with state law. A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation. The President, acting on his own, cannot implement such a treaty. Consequently, the state court was free to follow state law; its refusal to reconsider the prisoner’s conviction did not violate the Supremacy Clause.

Question 66

Congressional Limits on presidential authority

Answer 66

Question 67

Permissible and impermissible compulsion First amendment freedom to speak Universities

Answer 67

Question 68

Organizational standing

Answer 68

an organization may bring an action on behalf of its members if (i) its members would have standing to sue, and (ii) the interests at stake are germane to the organization’s purpose.

Question 69

permitted under the Commerce Clause.?

Answer 69

although Congress generally may regulate a non-economic activity only if it has a substantial economic affect on interstate commerce, indirect regulation of such an activity that is directly facilitated by use of interstate commerce is permitted under the Commerce Clause.

Question 70

ordinance discriminates against the out-of-state facility is ok when

Answer 70

The ordinance discriminates against the out-of-state facility and in favor of the local transfer station. Because it deals with a traditional local government function (i.e., trash removal), however, such discrimination is permitted under the Dormant Commerce Clause.

Question 71

there is fundamental right to travel internationally?

Answer 71

No

Question 72

Congress may not place conditions on grants that

Answer 72

unconstitutionally burden a recipient’s First Amendment rights.

‘the government may not tell people what they must believe or say.

Question 73

Government law suit immunity

Answer 73

Question 74

Is there a constitutional right to access government information?

Answer 74

Question 75

Electoral regulations must comply with which amendments

Answer 75

Question 76

State election restriction

Answer 76

Question 77

content neutral time manner restrictions scrutiny standard

Answer 77

Intermediate scrutiny

Narrowly tailored for substantial interest

Leave open ample alternative channels of communication

Question 78

A state tax imposed on interstate commerce must satisfy the Complete Auto test. Under this test,

Answer 78

(i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state. In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues.

Question 79

The Supreme Court applies a four-part test to determine whether a state tax comports with the Commerce Clause:

Answer 79

(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 80

Federal action or court decisions impact contracts clause?

Answer 80

The Contracts Clause of Article I, Section 10 prohibits state legislation from retroactively impairing the obligation of contracts. This clause does not apply to federal action or court decisions. Here, the entity that impaired existing contracts with the company was a federal agency. Consequently, the agency’s action did not violate the Contracts Clause.

Question 81

Regulation of commercial speech

Answer 81

Question 82

Content-neutral restrictions speech on government property

Answer 82

Question 83

Congress power on Supreme court’s appellate jurisdiction

Answer 83

Question 84

Permissible race-based affirmative action

Answer 84

Question 85

No imposing federal taxes on states that

Answer 85