Con Law

Question 1

Establishment Clause

Answer 1

(SEX or PEE)

(1) Secular Purpose
(2) Effect neither promotes nor inhibits religion
(3) no excessive government entanglement

Question 2

Time Place and Manner Restrictions

Answer 2

Content Neutral
Narrowly tailored to serve an important government interest
Leave open alternative channels of communication

Question 3

Rational Basis

Answer 3

Burden on the challenger.

Rationally related to a legitimate government interest

Question 4

Commercial Speech Regulation

Answer 4

Must concern lawful activity and cannot be misleading or fraudulent; then
(1) substantial government interest (2) directly advances government interest and (3) NT to substantial government interest

Question 5

Strict Scrutiny

Answer 5

Government must prove law is necessary to achieve a compelling interest
Applies to equal protection (suspect classes; NORA) and violation of fundamental rights
Alienage is RB IF - voting, serving on a jury, cops, teacher or probation officer

Question 6

Executive Agreements and Treaties

Answer 6

Treaty - Sen approval; prevails over state; last in time control for fed
Exec. Agree - NO Sen. approval; prevails over states; fed stat control

Question 7

Intermediate Scrutiny

Answer 7

Substantially related to an important government interest (gender, illegitimacy, undocumented alien children) (SIC)
Classifications for role stereotypes not allowed but remedy past discrimination is allowed

Question 8

Declaratory Judgment

Answer 8

Fed Court will hear only if actual controversy

P must show that he engaged or wishes to engage in specific conduct and law imposes an immediate danger

Question 9

Standing

Answer 9

A person must have a concrete stake in the outcome of a case at all stages of litigation

(1) Injury (need not be economic)
(2) Causation
(3) Redressability
* Taxpayers only have standing if challenging establishment clause

Question 10

Third Party Standing

Answer 10

(1) If 3P has difficulty asserting own rights (membership association); or
(2) Special relationship b/t claimant and 3P (doctor patient)

Question 11

Ripeness

Answer 11

Pre-enforcement review (usually seeking declaratory judgment)
Hardship will be suffered and fitness of issues for review

Question 12

Mootness

Answer 12

Events after filing lawsuit no long in existence = moot

EXCEPT (1) Wrong capable of repetition but evades review (2) Voluntary cessation (3) Class Action

Question 13

Political Questions

Answer 13

Will not be adjudicated

NEVER right answer - republican form of government, foreign policy, impeachment and removal challenge, gerrymandering

Question 14

Commerce Power

Answer 14

Congress can regulate channels, instrumentality, economic activities with a substantial effect on IS commerce.
*Cannot compel activity

Question 15

Preemption

Answer 15

(1) Express - exclusivity in the field

(2) Implied - cannot comply simultaneously with state and federal law so state law preempted

Question 16

Dormant commerce Clause (negative implications)

Answer 16

(1) State or local discrimination against out of staters
(2) Places undue burden on IS commerce unless NECESSARY to achieve an IMPORTANT government purpose (except congressional approval and market part.)
* burden v. benefit

Question 17

P & I of Article IV (right to earn a living)

Answer 17

(1) Discriminates against out of staters
(2) Pertains to economic activities or fundamental rights (making a living)
* *Can’t be used by corporations or aliens
(3) Must be necessary to achieve an important government purpose

Question 18

State Action

Answer 18

Government (not private individuals) must comply with constitution
State Action of private individuals when (1) traditionally done by the government or entanglement (authorizes, encourages or facilitates

Question 19

Procedural Due Process

Answer 19

Deprivation of life, liberty (freedom in const) or property
Balancing test: (1) importance of the interest; (2) ability of additional procedures (3) efficiency/economically possible
Welfare = notice and hearing
SS benefits = post-termination hearing

Question 20

Substantive Due Process

Answer 20

*Requires that gov’t deprivation of LLP be justified by sufficient purpose.
Protecting economic liberties and safeguarding properties
Only RB test used for laws affecting economic rights (taking can be either physical or regulatory)

Question 21

Contracts Clause

Answer 21

ONLY STATES - cannot enact laws interferring with already existing contracts
Interference w/ private - Substantially impairs rights and must be reasonably and NT to promote important interest
Government contract interference = SS

Question 22

Fundamental Right to Privacy

Answer 22

Right to marry, procreate, family together, upbringing of children, purchase and use contraceptives, right to an abortion (cannot prohibit prior to viability but can regulate as long as no undue burden; after viability - prohibit unless necessary to protect health)
Right to refuse medical treatment, right to travel (durational residency requirement)
Right to vote - at large election are constitutional unless proof of discriminatory PURPOSE

Question 23

Free Speech

Answer 23

CB (SS) - based on subject matter or viewpoint
CN (IS)
Symbolic speech - may regulate if IMPORTANT interest unrelated to suppression of the message and no grater than necessary to achieve goal (flag burning/cross)
GOVT SPEECH IS RB (usually can’t be challenged

Question 24

Unprotected/Less Protected Speech

Answer 24

(1) Incitement of imminent lawless action that is likely to produce that action
(2) Fighting words - true threats or personally abusive words likely to incite immediate physical retaliation (usually vague or overbroad though)
(3) Obscenity - Must appeal to prurient interest, patently offensive and lack artistic, literary, political or scientific value (national standard)
NOTE: speech by govt employees on the job is not protected
(4) Defamatory speech
(5) Some commercial speech

Question 25

Defamation

Answer 25

(1) Public figure - must prove actual malice and P must prove falsity (punitive damages)
(2) Private Figure of Public Concern - negligence and actual injury and P must prove falsity - punitive requires actual malice

Question 26

Places Available for Speech

Answer 26

(1) Public Forums - cant be CB (SS), proper TPM (IS)
(2) Designated Public Forum - government properties that are voluntarily open (same as public forums)
(3) Limited Public Forums - limited to certain groups or dedicated to certain speech - reasonable regulation and VPN
(4) Non public forum - RB (military bases, area outside jails, schools, sidewalks outside post office, signs on public property, airports - reasonable laws not aimed at the suppression of speech

Question 27

Freedom of Association

Answer 27

Prohibit or punish group membership must meet SS

Can’t require disclosure of group membership unless SS

Question 28

10th Amendment

Answer 28

Prohibits Congress from subjecting states to regulation
Reserves to the states powers not granted to the federal government
Does not bar enforcement of a regulation that applies to the states and private sector

Question 29

11th Amendment

Answer 29

Prohibits federal courts from hearing damages action against the states and their agencies
Bars suits by state employees against state employers