Con Law 2

Question 1

Privileges and Immunities clauses (2)

Answer 1

(1) P&A Clause of Art Iv, section 2: state discrimination against residence of other states (governmental worker exception)
(2) P&A Clause of Fourteenth Amd: protects national citizenship (generally dead letter)

Question 2

Can Congress increase the jurisdiction of the Supreme Court?

Answer 2

Congress may broadly regulate appellate jurisdiction (including increasing the Supreme Court’s appellate jurisdiction, such as by requiring the Supreme Court to directly review state court decisions), but it may not enlarge or restrict the original jurisdiction of the Supreme Court.

Question 3

Affectation Doctrine

Answer 3

means Congress now has the power to regulate any economic activity, even intrastate, that has a substantive effect (even indirectly) on interstate commerce (from NLRB case upholding Wagner Act, which required collective bargaining in all industries “affecting” interstate commerce)

Question 4

Cumulative affect doctrine

Answer 4

expansion of the Affectation Doctrine, where a single noneconomic act might still be regulated if similar acts might have a cumulative effect on interstate commerce (Wickard v Filburn, farmer case).
Limited by Lopez (firearms case), to say that noneconomic intrastate activity cannot be regulated under the commerce clause.

Question 5

Approach for Commerce clause

Answer 5

In order to regulate, must show:

1) regulated activity is “economic” in nature, and
2) activity, when taken cumulatively, has a substantial effect on interstate commerce.

Question 6

Use of commerce clause for antidiscrimination law

Answer 6

Katzenbach: interstate highway restaurant

Heart of Atlanta motel: public accommodations

Question 7

Anti Commendeering

Answer 7

10th Amd prevents states from commandeering the lawmaking process, or compel state executive officials to administer or enforce federal programs/laws.
If a federal law compels state legislative or regulatory activity, the statute is unconstitutional even if there is a compelling need for the federal action.

Question 8

Congress’s spending power

Answer 8

“to pay the debts and provide for the common defense and general welfare of the US,” modifies the taxing power, not it’s own grant of power

Question 9

Conditional spending

Answer 9

Dole case: conditional federal funds ok if:

a) spending is for general welfare
b) condition is unambiguous
c) condition related to the federal program
d) state isn’t required to take unconstitutional action
e) amount is not so great as to be coercive

Question 10

Property power of congress

Answer 10

power to “dispose of and make all needful rules and regulations respecting the Territory or other Property belonging to the US”

Question 11

Other random Congressional powers (4)

Answer 11

> Admiralty and maritime
Bankruptcy power
Postal power
Copyright and Patent power

Question 12

The Fourteenth Amendment includes (3)

Answer 12

Prevents states from violating

1) Due Process
2) Equal Protection
3) Privileges and Immunities

Question 13

Enforcement of 13th and 14th amd requires

Answer 13

1) state engaged in widespread violation, and

2) legislative remedy is “congruent and proportional” to the violations

Question 14

The protections of the Privileges and Immunities Clause extend only to…

Answer 14

individuals who are citizens, not corporations or aliens.

Also does not apply to regulation of recreational, noncommercial activities, which states are permitted to do.

Question 15

Obscenity

Answer 15

Obscenity is not constitutionally protected speech and can be regulated. However, material must meet a three part test to be considered obscene:

(1) the material, taken as a whole, must appeal to the prurient interest, applying contemporary local/community standards;
(2) the material must depict in a patently offensive way the sexual conduct specifically defined by a state statute; and
(3) the material must lack serious literary, artistic, political, or scientific value (using a national reasonable person standard)

Question 16

President’s removal power

Answer 16

The president has the power to remove most executive officers without cause, but must have cause to remove executive officers performing quasi-judicial functions.

Question 17

Congressional investigations

Answer 17

Congress’s authority to conduct investigations only includes those areas or matters in which the Constitution allows it to legislate. There is no express constitutional power of Congress to investigate. The investigation power has been held to be implicit in the Article I, Section 1 grant of “legislative powers” to Congress (Daugherty). As an implied power, it is limited to those concerns directly related to matters upon which Congress may legislate.

Question 18

Executive privilege

Answer 18

The doctrine of executive privilege is not absolute. A qualified privilege exists to shield confidential executive branch communications from disclosure. However, when there is a demonstrated need for the information in a criminal trial and disclosure would not jeopardize any national security interests, the executive branch must reveal the communication (United States v. Nixon).

Question 19

Ratification of Treaties

Answer 19

Treaties, which prevail over pre-existing federal law, do not have to be ratified by Congress in order to take effect if they are self-executing treaties. Non-self-executing treaties must be ratified by Congress before they take effect.

Question 20

intergovernmental immunity

Answer 20

The the Supremacy Clause does not permit taxation of any federally owned property, or to otherwise tax the federal government directly. However, “property interest taxes,” which tax the user’s right to the use and enjoyment of federal property, are permitted.

Question 21

Contracts clause

Answer 21

Article I, Section 10 of the U.S. Constitution provides: “No STATE shall pass any law impairing the obligation of contracts.” It applies to state legislation, but NOT to state court decisions or the federal government.
Test to determine if private contract is being impermissibly modified by the legislature:
(1) whether the state law has “operated as a substantial impairment of a contractual relationship”; and, if so,
(2) whether the state law is designed to promote a significant and legitimate public purpose/interest; and, if it does, then
(3) whether law is reasonable and narrowly tailored means of promoting the significant public purpose rather than an unjustifiable attempt to merely change the obligation of parties to a private contract.

Question 22

Abstention Doctrine

Answer 22

Based on the idea that the Supreme Court should allow the state court to resolve issues of state law, a federal court may “abstain” or refuse to hear a particular case when there are undecided issues of state law presented. This doctrine applies only when there are ongoing proceedings pending at the state level, since the case might still be decided under adequate and independent state grounds.

Question 23

Fundamental rights to privacy (CAMPER)

Answer 23

[CAMPER]
Contraception
Abortion
Marriage
Procreation
Education
Rights of related persons to live together

Question 24

Can congress require state and local governments to follow the provisions of the Federal Fair Labor and Standards Act requiring minimum wages for all employees.

Answer 24

Garcia v. San Antonio Metropolitan Transit Authority: court held yes, b/c under its commerce power, Congress could enact such a generally applicable law that applied to both the public and private sector. In this case, the Tenth Amendment did not entitle a state’s own operations to an exemption merely because it is a state that is being regulated along with other private entities.

Question 25

hypo: validity of a federal law that required states to either regulate radioactive waste or take title to it

Answer 25

New York v. United States [505 U.S. 144 (1992)]: struck down, b/c forcing states to accept ownership of radioactive wastes would impermissibly “commandeer” state governments, and requiring state compliance with federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation.

Question 26

determining a Regulatory taking

Answer 26

There is a taking when the regulation leaves no reasonable economically viable use. But a regulation is not a taking simply because it decreases the value of a person’s property so long as it leaves a reasonable economically viable use.

Question 27

hypo: after a person purchased beachfront property for almost $1 million, the state adopted a coastal protection plan that prevented the construction of any permanent habitable structures on the property. The trial court concluded that this prohibition rendered the property “valueless.”

Answer 27

Lucas v. South Carolina Coastal Council [505 U.S. 1003 (1992)]: court held the law was a taking because “it denied all economically beneficial or productive use of the land.”

Question 28

Hypo: state initiated condemnation proceedings against property owners who refused to sell their property to the City, which had earmarked the property for a development plan designed to revitalize its ailing economy. The property was to be used for commercial, residential, and recreational purposes and not to be held open for use by the general public.

Answer 28

Kelo v. the City of New London: Court held that the city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment. Constitutional taking.

Question 29

case: public school’s inclusion of a cleric-led non-denominational prayer in its graduation ceremony

Answer 29

Lee v. Weisman, 505 U.S. 577 (1992): held to violate the Establishment Clause. As a general rule, religious activities conducted in public schools violate the Establishment Clause because their primary purpose is to promote religion. This is so where a state official arranges for the prayer, and the state, as a practical matter, compels attendance and participation in the ceremony.

Question 30

Affirmative defenses

Answer 30

Must be pled initially or else waived.
These include:
• assumption of risk;
• contributory negligence;
• duress;
• failure of consideration;
• fraud;
• illegality;
• statute of frauds;
• statute of imitations;

Question 31

Dormant commerce clause, tests

Answer 31

Where Congress has not enacted legislation, the states are free to regulate local transactions affecting interstate commerce, subject to the limitations of DCC:

A state law that discriminates against in-state and out-of-state economic actors on its face: subject to strict scrutiny

If a state law incidentally burdens interstate commerce: balancing test, upheld unless the burden on interstate commerce clearly outweighs the local benefits.

Question 32

Applicability of Equal Protection to State licensing of a private entity

Answer 32

State licensing of a private entity is not sufficient to render the discriminatory practices of the private entity state action within the meaning of the Fourteenth Amendment (Moose Lodge v. Irvis, US 1972)

Question 33

Con law approach

Answer 33

1) Standing and state action
2) Who is passing this law?
3) Purpose for law?
4) Who does it affect? (minority, class, race, etc)
5) Apply appropriate standard (SDP, PDP, EqP)

Question 34

Constitutional restrictions on abortions

Answer 34

the trimester test of Roe has been partially overruled by Planned Parenthood of Southeastern Pennsylvania v. Casey. As a result of Casey, the states may restrict abortion as long as they do not place any undue burden on the woman’s right to choose.

Undue burden includes: More than a 24 hour waiting period, Spousal consent, Spousal notice, parental consent for minors without judicial bypass

Question 35

Is there a right to run as a political candidate?

Answer 35

The right to be a candidate is related to the fundamental right to vote.
In Storer v. Brown [415 U.S. 724 (1974)], SC applied strict scrutiny to a “disaffiliation” statute. The court noted that the state must adopt reasonable alternative means for independent candidates and minor political parties to get a ballot position, and the alternative means must not place too heavy a burden on the right to vote and the right to associate.
Basically, SS applies to: Discrimination in voting (1 P/ 1 V),
Reapportionment (Gerrymandering), Switching party affiliation (candidate and voter), Ballot restrictions based on “special interests” (i.e. land ownership/parent)
But, RBR applies to: right to be a candidate, Payment of a filing fee, Age restrictions

Question 36

Government function exception (EqP)

Answer 36

For discrimination based on alienage, RBR will apply (instead of intermediate scrutiny) for jobs which are govt functions, including: Police and Probation Officers, Teachers, Jurors

Question 37

assessing a regulatory taking

Answer 37

Balancing test:

1) economic impact
2) extent of interference w/expectations or business purpose
3) character of govt action (purpose)

Question 38

Conditional permits on landuse

Answer 38

The govt can place a condition on the grant of a permit for land development if there is a logical nexus between the condition and the governmental
purposes, and rough proportionality between the
impact on the proposed development and the governmental objectives served by the condition.
If not met, its an unconstitutional regulatory taking.

Question 39

anti-delegation

Answer 39

Congress may delegate certain of its enumerated powers to the president, the courts, or other administrative agencies. When Congress attempts to delegate power, the power must be one that Congress may delegate (i.e., NOT the power to declare war, to ratify treaties, to try cases of impeachment). Also, the delegation must contain at least some general guidelines (“intelligible principle”) such that a court could determine whether the delegatee had exceeded the authority granted by Congress.

Question 40

Speech and Debate Clause

Answer 40

privilege that applies to conduct of members of Congress or their aides who are assisting in legislative functions.

Question 41

degree of scrutiny for contract clause violations

Answer 41

The degree of judicial scrutiny applied to government impairment of contracts is generally rather low. However, enhanced scrutiny is warranted when the government itself is a party to the contract, because the legislative assessment of reasonableness is somewhat suspect when the state is looking over its own actions.