Con Law Flashcards
Checklist Approach
- Who is Acting – State action or individual acting on state’s behalf? Congress or state legislature?
- Identify Individual Rights or Subject Matter Involved - category of Congressional regulation? Enumerated powers? “Fundamental” rights at issue? Crossover agency issues?
- Test Applicable – appropriate legislative power? Strict scrutiny? Intermediate or rational basis?
- Eliminate Wrong Legal Standards – challenge to leg power → government has power over issue? Means reach ends achieved? Challenge to individual rights → government (strict) or challenger (rational) have BOP?
- Be Aware of Subtle Differences – tests and levels of scrutiny have slight variations
- The State of Tennesville enacted a law criminalizing certain speech. The legislature intended to punish the use of fighting words. A recent law review article by a 3L argued that the law is a fairly well-worded, good faith attempt at the constitutional requirements. The student argued that a reasonable person could decide what conduct or speech was prohibited, but that it is borderline constitutional. The student wrote the article because there were no states cases interpreting the statute, and the new governor had talked about enforcing it. Americans for Free Speech initiate a declaratory judgment action in federal district court. The Governor of Tennesville claims that the law prohibits another, yet unrecognized category of unprotected free speech. The district court will most likely:
A) Not hear the case because the state court has not interpreted the law.
B) Not hear the case because the state is immune from suit in federal court.
C) Hear the case, if the AFS has membership in the state.
D) Hear the case, because of the law’s effects on interstate commerce.
A) Not hear the case because the state court has not interpreted the law.
Abstention doctrine applies; unsettled issue of state law.
- South Georgia has had a statute on the books prohibiting the use of contraceptives by any person since the year condoms were invented. The state has not prosecuted anyone under the statute in 80 years, and sales have been brisk. Bill and Sally Process are getting married and living in South Georgia. Bill wanted to join a gang of liberals. As an initiation, Bill was ordered to file suit against the State. Bill sued the state in federal court alleging the old contraceptive law was unconstitutional. What is the court’s most likely course of action?
A) Dismiss the case, as the outcome would have no practical legal effect.
B) Dismiss, because Bill does not have standing.
C) Dismiss, as a violation of 11th Amendment
D) Hear the case on its merits and find unconstitutional.
A) Dismiss the case, as the outcome would have no practical legal effect.
This is the mootness doctrine.
- Last year, the Key Lime Supreme Court struck down the statute that sets the procedure for implementing the death penalty for capital crimes in the state. This year, Key Lime State prosecuted Birddog for murder. Key Lime has had a statute since 1901 stating that this crime was a capital offense. Key Lime legislature passed a statute that would survive current constitutional standards for the death penalty procedures. In June, Birddog was convicted and sentenced to death in accordance with the new law. What is the likely outcome on appeal of the case?
A) The sentence violates the Ex post facto clause if the new statute was not in effect when the crime was committed.
B) The sentence will be upheld, because it comports with the Constitution.
C) The conviction violates the Ex Post Facto clause if the new statute was not in effect when the crime was committed.
D) The conviction will be upheld, but the sentence violates the Constitution.
B) The sentence will be upheld, because it comports with the Constitution.
EPC prohibits punishing an act that was legal when it was committed and made illegal afterwards or increases the punishment of that crime.
- The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. The requirement that a license applicant have graduated from an Ilwa barber school is likely
A) Constitutional, because barbering is a privilege, not a right.
B) Constitutional, because the state does not know the quality of barber schools outside of Ilwa
C) Unconstitutional because it is a violation of the 14th amendment Privileges or Immunities Clause.
D) Unconstitutional as an undue burden on interstate commerce.
D) Unconstitutional as an undue burden on interstate commerce.
State is preferring in-state colleges over out-of-state colleges and restricting interstate commerce.
- The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. The requirement that a license applicant must be a US Citizen is
A) Constitutional as an exercise of the state’s police power
B) Constitutional as an effort to ensure that barbers speak English adequately
C) Unconstitutional as a denial of equal protection
D) Unconstitutional as a bill of attainder.
C) Unconstitutional as a denial of equal protection
The regulation fails strict scrutiny analysis.
- The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. Which of the following is/are good argument(s) to challenge the 2 year residency requirement?
A) Art. IV Privileges and Immunities
B) 14th Amendment Privileges or Immunities
C) 14th Amendment Equal Protection
D) Both A and C.
D) Both A and C.
A is specific protection against discrimination of out-of-staters, so it is effective.
C protects against invidious discrimination, including interstate travel rights, so it is effective.
- The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. Jake Elwood, a resident of the State of Eastern, was not allowed to sit for the hairdresser’s exam in Ilwa because he graduated from an Eastern barber school. If Jake files suit in federal court to contest denial of the license, what is the likely outcome for Jake?
A) Dismissed, because of the abstention doctrine.
B) Prevail, because Ilwa violated due process.
C) Prevail, because the law violates the Art IV P&I Clause
D) Decided on the merits, because federal jurisdiction extends to controversies between two states.
C) Prevail, because the law violates the Art IV P&I Clause
Ilwa is discriminating against citizens of Eastern.
- Ronald McDowell is convicted for speaking out about the oppression of clowns by the state government. Ronald is convicted under a statute prohibiting the “disturbance of the peace by shouting political nonsense.” While Ronald was known for his outbursts when he forgot his medication, some of his statements on this occasion could be defensible if interpreted favorably.
On appeal to the state’s highest court claiming a violation of his right to free speech, the court refused to hear the case. In a single page decision, the court invoked a widely ignored rule of appellate procedure requiring litigants to attach a copy of the statute in the appendix of the brief. As a result, Ronald’s conviction stands. In an appeal to the U.S. Supreme Court, what is the most likely result?
A) The Court will hear the case if Ronald claims the state violated due process by applying the appellate rule.
B) The Court will hear the case, because the state may not preclude review by applying an appellate rule inconsistently.
C) The Court will hear the case, because it is a facially invalid statute.
D) The Court will not hear the case, because the appellate rule issue is not a federal constitutional matter.
B) The Court will hear the case, because the state may not preclude review by applying an appellate rule inconsistently.
- Congress passed a statute requiring each state to arrange for the disposal of toxic waste generated within its borders. If the toxic waste is not disposed of or contained pursuant to federal guidelines w/in 5 years, the state will be deemed to “take title” to the waste and thereby become liable for tort damages stemming from it. The federal statute contemplates that every state with toxic waste w/in its borders will pass legislation funding containment. It will take new Power State five years to build containment facilities to handle all of the nuclear waste it currently has to the new federal standards. New Power files an action in federal court to have the law declared invalid. What is the likely outcome of the case?
A) The court will invalidate the law, which improperly requires the state to pass laws to implement a federal program.
B) The court will dismiss the case, b/c it violates 11th Amendment sovereign immunity.
C) The court will dismiss, because New Power will not suffer any injury for five years, so the case is not ripe.
D) The court will find for the US, because the law is constitutionally valid.
A) The court will invalidate the law, which improperly requires the state to pass laws to implement a federal program.
Congress may not commandeer the legislative process of the states into implementing a federal program. NY v. US.
- The State of North Island entered into a K w/Roads, Inc., for the construction of a four-lane turnpike. Prior to commencement of construction, the legislature, in order to provide funds for parks, repealed the statute authorizing the turnpike and canceled the agreement with Roads. Roads sued North Island to enforce its original agreement. In ruling on this case, a court will likely hold that the state statute canceling the agreement is
A) Valid, because constitutionally the sovereign is not liable except with its own consent.
B) Valid, because the legislature is vested with constitutional authority to repeal laws it has enacted.
C) Invalid, because a state is equitably estopped to disclaim a valid bid once accepted by it.
D) Invalid, because of the constitutional prohibition against impairment of contracts.
B) Valid, because the legislature is vested with constitutional authority to repeal laws it has enacted.
State laws impairing government Ks need only a rational basis, which here is to serve the public need for parks.
- Congress decided that the application of the Uniform Consumer Credit Code should be the same throughout the US. To that end, it enacted the UCCC as a federal law directly applicable to all consumer credit, small loans, and retail installment sales. The law is intended to protect borrowers and buyers against unfair practices by suppliers of consumer credit. A national religious organization makes loans throughout the country for the construction and furnishing of churches. The federal UCCC would substantially interfere with the successful accomplishment of that organization’s religious objectives. The organization seeks to obtain a declaratory judgment that the federal law may not be applied to its lending activities. As a matter of constitutional law, which of the following best describes the burden that must be sustained?
A) The federal government must demonstrate that the application of this statute to the lending activities of this organization is necessary to vindicate a compelling government interest.
B) The federal government must demonstrate that the religious conduct affects commerce.
C) The organization must prove that the activity is central to their religion and substantially interfered with.
D) The organization will prevail by showing intentional discrimination by the federal government only if it also shows the law is not narrowly tailored to a compelling government interest.
D) The organization will prevail by showing intentional discrimination by the federal government only if it also shows the law is not narrowly tailored to a compelling government interest.
Burden is on challenger to show the lack of a tailored application to a compelling government interest. Even though the law affects religion, it is generally applicable. It will probably be reviewed under rational basis scrutiny, unless intentional discrimination is shown.
138. The Federal Endangered Species Act imposes criminal penalties for killing certain specified animals, among which is the rare Plaid Squirrel. Trail State classifies all species of squirrels as varmints, which may be destroyed by anyone with a Trail State hunting license. Rambo, who has a Trail State hunting license, regularly shoots Plaid Squirrels that trespass on his land. If Rambo is prosecuted under the federal statute, and challenges the constitutionality of the law, which of the following is the strongest constitutional argument in support of the statute? A) The Commerce Power B) The Necessary and Proper Clause C) The Police Power D) The power to regulate federal lands
A) The Commerce Power
It has been held that wild animals move in interstate commerce when they cross state lines, and are thus subject to the commerce power.
- The Macrosoft Corporation is headquartered in Evergreen State. To keep the corporation within the state, Evergreen passes a massive funding bill, which includes direct subsidies to Macrosoft. Several state attorneys general and private software competitor companies file an injunction against Evergreen subsidizing Macrosoft, claiming a violation of the Dormant Commerce Clause. The most likely disposition of this suit will be that the injunction will be:
A) Granted, because the subsidies violate the DCC by unduly burdening out-of-state companies that must compete w/Macrosoft
B) Granted, because the subsidies violate the DCC by effectively insulating the in-state corporation from out-of-state competition.
C) Granted, because the Ps have standing to challenge the state subsidies as measurable expenditures.
D) Denied, because the states are not prohibited from using state tax dollars to subsidize local industry.
D) Denied, because the states are not prohibited from using state tax dollars to subsidize local industry.
States can “distribute government largesse” to state residents. Reeves v. Stake.
- The local chapter of the Libertarians wants to secede from Snow County and form Freedom County. In an effort to raise awareness of the oppressive nature of the government, Jeb contacted the advertising department of the local AM talk radio station. Jeb wants to run a campaign of political ads on the radio, and he thinks this station is the best way to reach his target audience. The advertising department manager refuses to run the ads. Jeb files an action seeking a federal court order to force the radio station to air the advertisements. What is the trial court’s strongest justification in denying Jeb relief?
A) The radio station’s commercial time is not a public forum.
B) Jeb has a reasonable alternative to get his message out to his target audience.
C) The Fourteenth Amendment provides no basis upon which to compel the radio station to air Jeb’s ads
D) The radio station’s decision is based on content neutral reason.
C) The Fourteenth Amendment provides no basis upon which to compel the radio station to air Jeb’s ads
Radio station is not a state actor, so the Constitution does not require it to play Jeb’s ads. First Amendment doctrine does not apply.
- University of Michel conducted a test, using state tax subsidies, to determine the cause of the recent increase in fatalities from car accidents. Professor Thunderbird concluded that Yokobishi Manufacturing had produced a defective electronic speedometer. Neither Congress nor any other state took any action on the issue. Rather than naming the manufacturer, the Michel State Legislature banned the use of all electronic speedometers within the state effective 60 days from the passage of the law. What is the best argument to defeat the law?
A) It is a violation of the Equal Protection Clause because it treats electronic speedometers differently from conventional speedometers.
B) It is a violation of the Commerce Clause, because it unduly burdens interstate commerce
C) it is a violation of the Due Process Clause because it is a taking without just compensation.
D) It is a violation of the Constitution as a Bill of Attainder
B) It is a violation of the Commerce Clause, because it unduly burdens interstate commerce
Arguably a burden on interstate commerce, like requiring different sized mud flaps on the back of trucks.
- Responding to the economic downturn, New Gingrich State passed a law terminating all welfare programs effective in 90 days. Ninety days later, the State cuts off Sally’s benefits. Sally, a mother of two who is currently on welfare, files suit. The court will most likely
A) Find that the hardship on Sally outweighs the administrative convenience of terminating the benefits.
B) Deny Sally’s claim.
C) Find the action invalid as the State did not provide Sally an opportunity to be heard.
D) Find that the State must give Sally a post-deprivation hearing to determine her benefits.
B) Deny Sally’s claim.
There was no state action. The state passed a statute to terminate a program which is not new state action.
- Dixie State requires a competency test granting people a license to teach elementary or secondary school w/in the state. The test covers skills and knowledge taught in high school, as well as other skills. Caucasian test-takers pass the test twice as often as African-American test-takers. Regina, a black woman who failed the test, sues Dixie State. An expert testifying on behalf of the P opines that Caucasians score 35% higher than minority groups on multiple-choice question format tests, but that other formats reduce the margin substantially. The expert further opines that the choice of the multiple choice format in the face of such evidence is clearly intentional discrimination. The court will most likely find that the competency test is
A) Constitutional, as rationally related to a legitimate government interest
B) Unconstitutional, as a violation of equal protection due to its discriminatory impact
C) Unconstitutional, as a violation of equal protection due to its discriminatory intent
D) Constitutional, because teachers constitute participation in government.
A) Constitutional, as rationally related to a legitimate government interest
Court will apply rational basis scrutiny because the law is not facially discriminatory.
- Sam Blocky was married to Eve. Eve won custody of their two children and support payments from Sam in the divorce decree. Readjustment was hard on Sam. Sam got behind in his support payments. Then Sam met Rebecca and asked her to marry him. The state refused to issue a marriage license unless he could make a showing that his two children would never have to go on welfare. This denial of the marriage license was pursuant to a state statute. What is the probable outcome if the statute were properly challenged as to its constitutionality?
A) Valid, as rationally related to the legitimate end of protecting children of a prior marriage
B) Valid, as the state has general power to enact legislation
C) Invalid, as the statute is not narrowly tailored to fit permissible ends.
D) Invalid, as the statute does not treat applicants with children the same as similarly situation applicants without children.
C) Invalid, as the statute is not narrowly tailored to fit permissible ends.
Best answer because the statute is a restriction on marriage, which must be narrowly tailored to promote a compelling government interest with no less restrictive means. The state can pursue child support in other ways.
People with children are not a suspect class.
153. A state law banning the sale of which substance would be least likely to be subject to strict scrutiny? A) Milk B) Condoms C) Rubber Tires D) B and C
A) Milk
Even if the court struck down the law, it wouldn’t apply strict scrutiny. Tires would probably be protected under DCC due to their necessity for interstate commerce.
- The State of Coast has a law that all state employees are “at-will” employees, which means they employees may be fired w/out cause. Prof Leftofski is an associate professor who attends public rallies critical of US foreign policy. He often cancels classes and has been late on several deadlines because of his activities. The university president tells the professor, “Get your lazy rear end off my campus. You’re fired.” Which of the following is the correct analysis and conclusion?
A) employment is a fundamental right requiring due process. Due process was denied so the prof’s termination was illegal.
B) A job with the government is a property right requiring due process. DP was denied, so the prof’s termination was illegal.
C) The prof had no property interest in the job, so his termination did not violate DP.
D) The prof was exercising his protected free speech rights, and so his at-will termination was unconstitutional.
C) The prof had no property interest in the job, so his termination did not violate DP.
At-will law negates any property interest in a public job, unless professor is tenured.
- The North American Association to Promote Strictly Traditional Religions (NAAPSTR) has successfully lobbied the State of Texarkana for a statute named “Equal Rights for All Religions.” The law requires broadcasters that air segments discussing Christianity to allow equal time for segments on Judaism, Hinduism, and Buddhism.
The American Atheism Association (AAA) is devoted to the study and promotion of the belief that there is no supreme power or creator. AAA has put together a segment about atheism for broadcast on five major television stations in Texarkana. However, four of the five stations have declined to air the segment because they believe it would violate the statute. AAA has sued the four stations and has file suit against the state challenging the constitutionality of the statute.
What is the strongest argument AAA can make in support of striking down the Equal Rights for All Religions Statute?
A) The First Amendment prohibits government interference with freedom of the press.
B) The fact that the statute involves only broadcast media and not print media is an Equal Protection violation.
C) The First Amendment prohibits government interference w/the free exercise of religion.
D) The statute is not narrowly tailored to promote a compelling governmental interest.
D) The statute is not narrowly tailored to promote a compelling governmental interest.
A statute that prefers certain religions must be narrowly tailored to achieve a compelling secular end. This statute fails that test.
- The states of Allen and Burns share a border straddled by a beautiful mountain range. Atop the range are two state parks, one run by the state of Allen and one run by the state of Burns. Visitors may take gondolas to the top of the mountains and state state-guided tours that overlap both parks. According to federal law, employees of any park or recreational facility that engages in interstate activities must be paid a minimum wage of $8.00. Tour guides are employed by both states. Tour guides from Allen are paid $6.75 per hour, which is the minimum wage of that state. Guides from Burns are paid $7.50 per hour, although that state’s minimum wage is only $6.00.
Employees from Burns sue the state in federal court for back pay, claiming they are entitled to the difference between the state and federal wage. What is the likely result?
A) The employees will prevail, because of the Supremacy Clause.
B) The case will be dismissed or removed pursuant to the 11th Amendment.
C) The state will prevail, because Congress has no authority to regulate the wages of state employees not engaged in interstate commerce.
D) The state will prevail, because the management of the park is a traditional state function.
B) The case will be dismissed or removed pursuant to the 11th Amendment.
Private citizens can’t sue states in federal court for money damages. Period.
- Congress has passed the Career Horizons Act which provides educational grants to U.S. citizens who meet specific qualifications. Hans Kleimer is a German citizen who has been studying in the US under a valid visa. Hans applies for a grant under the Act. Despite meeting all of the other specified qualifications, Hans is turned down because he is not a US Citizen. If Hans challenges the constitutionality of his denial, what is the most likely outcome?
A) Hans will not prevail, because Congress has the right to attach limiting conditions to its spending
B) Hans will prevail, because he is in the country legally and is entitled to constitutional protections.
C) Hans will not prevail, because Congress has broad powers to restrict entitlements of aliens.
D) The case will be dismissed, because aliens have no right to bring suit in US courts.
C) Hans will not prevail, because Congress has broad powers to restrict entitlements of aliens.
Article I gives Congress plenary powers to regulate the naturalization process. Therefore, Congress can restrict entitlements for the benefit of US citizens, as this would encourage aliens to become citizens.