Con Law

Question 1

Four requirements for standing

Answer 1

1. Injury
2. Causation and redressability
3. No third party standing
4. No generalized grievances

Question 2

What must plaintiff prove to show injury for standing purposes?

Answer 2

Plaintiff must allege and prove that he has been injured or will imminently be injured.

Injury is not established with mere ideological objection.

Plaintiffs may assert only injuries that they personally have suffered.

Question 3

What type of injury must a plaintiff seeking declaratory or injunctive relief show?

Answer 3

A likelihood of future harm.

Question 4

On exam–when question asks who has the best standing, look for what answer?

Answer 4

The plaintiff who has personally suffered the injury. Among these, look for the plaintiff who has suffered $$ damages.

Question 5

What are causation and redressability?

Answer 5

A plaintiff is required to show that the defendant caused the injury so that a favorable court decision is likely to remedy the harm. Otherwise, it would be an advisory opinion.

Question 6

What is the restriction on third party standing?

Answer 6

A plaintiff may not assert claims of others who are not before the court

Question 7

When can a plaintiff assert the claims of others based on a close relationship to the injured party?

Answer 7

When there is a close relationship between the P and the injured party which means the P can be trusted to adequately represent the interests of the third party. Ex.–Dr./patient–Dr. has $$ injury but brings suit on constitutional grounds on behalf of patient.

Question 8

When can a plaintiff assert the claims of another?

Answer 8

When the injured third party is unlikely to be able to assert his own rights.

Ex.–Jurors thrown out for unconstitutional reasons; are unlikely/unable to bring suit.

Question 9

When may an organization sue on behalf of its members? (3 requirements)

Answer 9

1. Members would have standing
2. Interests are germane to organization’s purpose
3. Neither the claim nor the relief requires the participation of individual members.

Question 10

What is the rule against generalized grievances? What is the exception?

Answer 10

Plaintiff must not be suing solely as a citizen or a taxpayer interested in having the gov’t follow the law.

Exception: Taxpayers have standing to challenge gov’t expenditures pursuant to fed statutes violating the establishment clause.

Question 11

What factors should be considered to determine whether a claim is ripe?

Answer 11

1. The hardship that will be suffered without pre-enforcement review of a statute or regulation.
2. The fitness of the issues and the record for judicial review.

Question 12

Exam: What issue should you think about when you see a declaratory judgment action? A claim for injunctive relief?

Answer 12

Ripeness; Mootness

Question 13

When is a claim moot? What will keep a claim alive?

Answer 13

If events after the filing of a lawsuit end the plaintiff’s injury. The case must be dismissed because P must present a live controversy.A non-frivolous money damages claim will keep a case alive.

Question 14

What are the three exceptions to the mootness requirement?

Answer 14

1. The wrong is capable of repetition but evades review because of its inherently limited time duration (e.g. abortion).
2. Voluntary cessation (by defendant)
3. Class action suits

Question 15

What is the political question doctrine?

Answer 15

Courts will not adjudicate questions committed to the other branches of government.

Question 16

What are four types of political questions?

Answer 16

1. Challenges under Art IV, Sec 4 (The US shall guarantee to each state a republican form of gov’t)
2. Challenges to the President’s conduct of foreign relations.
3. Challenges to the impeachment and removal process.
4. Challenges to partisan gerrymandering.

Question 17

What are four types of cases that come to the Supreme Court?

Answer 17

1. Cases from state courts by writ of certiorari
2. Cases from U.S. courts of appeal by writ of certiorari
3. Appeals for decisions of three-judge federal district courts–automatically skip to SCOTUS, which must hear it
4. Original and exclusive jurisdiction for suits between state gov’ts

Question 18

What is the final judgment rule?

Answer 18

Generally, SCOTUS can only hear cases after there has been a final judgment of the highest court of a state, or a U.S. Ct of Appeals, or a three-judge federal district court.

Question 19

What must be true for SCOTUS to review a state court decision?

Answer 19

There must not be independent and adequate state law grounds for the decision. If the state court decision rests on two grounds, one state and one federal, and the reversal of the federal law ground will not change the result, SCOTUS cannot hear it. (e.g. identical damages under state & federal)

Question 20

Federal courts and state courts may not hear suits against _____________

Answer 20

State governments–>goes to state and state agencies

–but NOT local gov’ts

Question 21

What is the principle of sovereign immunity? Where is it found?

Answer 21

The 11th Amendment bars suits against states in federal courts. That is, state gov’ts generally cannot be named as Ds in federal court cases. Sovereign immunity bars suits against states in state court or fed agencies, even on fed law claims.

Question 22

What are the exceptions to sovereign immunity? (4)

Answer 22

1. Waiver by a state–must expressly consent to being sued
2. States may be sued pursuant to fed laws adopted under Sec 5 of the 14th Amendment.
3. Fed gov’t may sue state gov’ts
4. Bankruptcy proceedings

Question 23

When and for what may state officers be sued?

Answer 23

Sovereign immunity does not bar suits by state officers. They may be sued for injunctive relief and for $$ damages to be paid out of their own pockets.
State officers may NOT be sued if the state treasury will be paying retroactive damages.

Question 24

What is the abstention doctrine?

Answer 24

Federal courts may not enjoin pending state court proceedings.

Question 25

What are the ‘big three’ powers of Congress?

Answer 25

Taxing, spending, and commerce

Question 26

In what areas does Cg have a police power? [THINK: Cg has ‘MILD’ police power]

Answer 26

Military
Indian reservations
Lands–federal lands
District of Columbia

Question 27

Article I, Sec 8 says Cg can adopt all laws that are ____________________ to exercise its authority

Answer 27

necessary and proper

Question 28

Congress may tax and spend for the ____________________.

Answer 28

general welfare

Question 29

With whom may Cg regulate commerce?

Answer 29

Foreign nations, Indian tribes, and among the states

Question 30

In what three ways may Cg regulate interstate commerce?

Answer 30

Cg may regulate
the channels of commerce,
the instrumentalities of commerce, and economic activities that have a substantial effect on interstate commerce.
(in the area of non-economic activity, a substantial effect cannot be based on cumulative impact)

Question 31

What is the reservation clause of the 10th Amendment?

Answer 31

All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

Question 32

What kind of state action may Cg NOT compel?

Answer 32

Cg may not compel regulatory or legislative action.

Question 33

Under what circumstances may Cg induce state gov’t action by placing requirements on grants?

Answer 33

1. Conditions are expressly stated

2. Conditions relate to the purpose of the spending program

Question 34

Congress may prohibit _______________ commercial activity by state gov’ts.

Answer 34

harmful commercial activity

Question 35

What limit exists on Cg’s ability to delegate legislative power?

Answer 35

None

Question 36

When is a legislative veto constitutional?

Answer 36

Never

Question 37

What two procedural steps are necessary for Cg to act?

Answer 37

Bicameralism–passage by both chambers

Presentment–giving the bill to the Pres to sign or veto

Question 38

What is a line-item veto?

Answer 38

When the President purports to sign only a part or parts of a bill into law. A line-item veto is unconstitutional; a bill must be adopted or rejected by the President in its entirety.

Question 39

Congress cannot delegate ______________ power to itself or its officers.

Answer 39

executive

Question 40

What is a treaty? When is a treaty effective?

Answer 40

An agreement between the United States and a foreign country negotiated by the President and effective when ratified by the Senate.

Question 41

What happens if a treaty conflicts with

• -a state law?
• -a federal statute?
• -the Constitution?

Answer 41

• -the state law is invalid
• -the one adopted last in time controls
• -the treaty is invalid

Question 42

What is an executive agreement? When is an executive agreement effective?

Answer 42

An agreement between the United States and a foreign country that is effective when signed by the President and the head of a foreign nation.

Question 43

For what purpose may an executive agreement be used?

Answer 43

For any purpose

Question 44

What happens if an executive agreement conflicts with

• -a state law?
• -a federal law?
• -the Constitution?

Answer 44

• -the executive agreement prevails over the state law
• -the federal law prevails
• -the Constitution prevails

Question 45

The President has broad powers as commander-in-chief to _____________________

Answer 45

use American troops in foreign countries.

Question 46

The appointment power allows the President to appoint which personnel? What is the Senate’s role?

Answer 46

Ambassadors, federal judges, and officers of the United States.

The Senate must approve the nominations.

Question 47

In whom may Cg vest the appointment of inferior officers?

Answer 47

President, heads of departments, or lower federal courts

Question 48

Whom may the President remove from office under the removal power?

Answer 48

Unless limited by federal statute, the President may fire ANY executive branch official.
–Cg may NOT limit the removal power with respect to the Cabinet.

Question 49

What two requirements must Cg meet to limit the President’s removal power by statute?

Answer 49

1. Must be an office where independence from the President is desirable, and
2. Cg cannot prohibit removal; it can limit removal to where there is good cause shown.

Question 50

The President, Vice President, federal judges, and all officers of the U.S. can be impeached and removed from office for ___________________________

Answer 50

treason, bribery, high crimes and misdemeanors

Question 51

Impeachment by the House of Reps requires a ________________ vote; conviction in the Senate requires a ___________ vote.

Answer 51

impeachment–majority vote

conviction–2/3 vote

Question 52

From what type of suits does the President have absolute immunity while in office?

Answer 52

Civil suits for money damages for actions while in office.

BUT–no immunity for actions that occurred prior to taking office.

Question 53

What is the extent of the President’s executive privilege?

Answer 53

The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important gov’t interests.

Question 54

What is the extent of the President’s pardon power?

Answer 54

President has the power to pardon anyone accused or convicted of federal crimes, except where the person has been impeached by the House; that person can never be pardoned for the underlying crimes that led to the impeachment. The pardon power does NOT apply to civil liability.

Question 55

What is the effect of the supremacy clause?

Answer 55

Valid federal law overrides or preempts inconsistent state law.

Question 56

What are the three types of preemption?

Answer 56

1. Express preemption
2. Implied preemption
3. States may not charge a state tax to be paid out of the federal treasury for federal gov’t activity.

Question 57

What is express preemption?

Answer 57

When Cg has authority to act, it can state that its power is exclusive in a field–if so, state and local laws in that field are preempted.

Question 58

In what three ways can implied preemption be found?

Answer 58

1. If it is not possible for someone to simultaneously comply w/ both fed and state laws.
2. If state law impedes the achievement of a federal objective.
3. If Cg evidences a clear intent to preempt state law (e.g. immigration)

Question 59

What are the negative implications of the commerce clause?

Answer 59

State or local laws are unconstitutional if they place an undue burden on interstate commerce.

Question 60

What is stated by the privileges and immunities clause of Art IV?

Answer 60

No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification

Question 61

What is stated by the privileges or immunities clause of the 14th Amendment?

Answer 61

Preserves a person’s right to travel from one state to another.

NOTE: ALWAYS THE WRONG ANSWER UNLESS RIGHT TO TRAVEL IS INVOLVED

Question 62

Analysis if state law does NOT discriminate against out-of-staters

Answer 62

1. P & I clause of Art IV does not apply; only applies if there is discrimination
2. If law burdens interstate commerce, it violates the DCC if the burden on commerce outweighs the benefits of the law

Question 63

Analysis if the law discriminates against out-of-staters

Answer 63

If the law burdens int’state commerce, it violates the DCC unless it is

• necessary to achieve an important gov’t purpose, and
• gov’t must show that no less-discriminatory alternative can achieve its goal

Question 64

Exceptions in which laws that would otherwise violate the DCC will be upheld

Answer 64

1. If Cg approves it, it’s OK
2. Market Participant Exception–a state or local gov’t may prefer its own citizens in receiving benefits from gov’t programs or dealing with gov’t-owned businesses

Question 65

Analysis if law discriminates against out-of-staters w/r/t their ability to earn a living

Answer 65

It violates the P & I clause of Art IV unless it is necessary to achieve an important gov’t purpose

Question 66

What are two entities which may not invoke the privileges and immunities clause of Art IV?

Answer 66

corporations and aliens

Question 67

What restrictions are placed on state taxation of interstate commerce?

Answer 67

1. There must be a substantial nexus between the product or activity to be taxed and the state.
2. State taxation of interstate businesses or companies must be fairly apportioned among the involved states.

Question 68

Full faith and credit must be given to judgments of courts in another state IF (3 criteria)

Answer 68

1. The court that rendered or issued the judgment must have personal and subject matter jurisdiciton.
2. The judgment must be on the merits.
3. The judgment must be final.

Question 69

Does the Constitution apply by its own force to private conduct?

Answer 69

NO–Congress must by statute apply constitutional norms to private conduct.

Question 70

May Cg prohibit private race discrimination?

Answer 70

YES-Pursuant to the 13th Amendment, which prohibits slavery, Cg has broad powers to regulate private race discrimination

Question 71

Under what authority may Cg apply constitutional norms to private conduct?

Answer 71

Pursuant to the commerce clause

Question 72

Can Cg use Sec 5 of the 14h Amendment to regulate private behavior?

Answer 72

NO–only to regulate state and local gov’ts.

Question 73

What are two situations where private conduct must comply with the Constitution?

Answer 73

1. If a private entity is performing a task traditionally, exclusively done by the gov’t–the PUBLIC FUNCTIONS EXCEPTION
2. If the gov’t affirmatively authorizes, encourages, or facilitates unconstitutional activity–the ENTANGLEMENT EXCEPTION

Question 74

Can courts enforce racially restrictive covenants?

Answer 74

NO

Question 75

Is there a state action when the gov’t leases premises to a restaurant that racially discriminates?

Answer 75

YES

Question 76

Is there a state action when a state provides free books to private schools that racially discriminate?

Answer 76

YES

Question 77

Is there state action when a private school that is over 99% funded by teh gov’t fires a teacher because of her speech?

Answer 77

NO–state hadn’t done anything to encourage the violation; mere subsidy is insufficient for state action

Question 78

Is there state action when the NCAA orders the suspension of a basketball coach at a state university?

Answer 78

NO

Question 79

Is there state action when a private entity regulates interscholastic sports within a state?

Answer 79

YES–key is that it only operates in a single state

Question 80

Is there state action when a private club with a liquor license from the state racially discriminates?

Answer 80

NO

Question 81

The BIll of Rights applies directly only to ____________________

Answer 81

the federal government

Question 82

How is the Bill of Rights applied to state and local governments?

Answer 82

Through its incorporation into the due process clause of the 14th Amendment.

Question 83

What rights in the Bill of Rights have not been applied against the states?

Answer 83

1. The 3rd Am right not to quarter a soldier in one’s home
2. The 5th Am. right to grand jury indictment in criminal cases
3. the 7th Am right to jury trial in civil cases
4. The 8th Am right against excessive fines

Question 84

What is rational basis scrutiny?

Answer 84

A law is upheld if it is rationally related to a legitimate government purpose.

Question 85

Who has the burden of proof when rational basis scrutiny is applied? What must he prove?

Answer 85

The challenger must prove that

• -there is NO CONCEIVABLE legitimate purpose, or
• -the law is not rationally related to it

Question 86

What is intermediate scrutiny?

Answer 86

A law is upheld if it is substantially related to an important government purpose.

Question 87

Who has the burden of proof when intermediate scrutiny is applied, and what must he prove?

Answer 87

The gov’t must prove that the law is substantially related to an important gov’t purpose–and that it is narrowly tailored to meet that purpose.

Question 88

What is strict scrutiny?

Answer 88

A law is upheld if the law is necessary to achieve a compelling government purpose.

Question 89

Who has the burden of proof in strict scrutiny, and what must he prove?

Answer 89

The government must prove that the law is necessary to achieve a compelling government purpose—and that the law is narrowly tailored to achieve that purpose. The law must be the least restrictive alternative.

Question 90

Procedural due process is the procedure the gov’t must follow to take away _______________________

Answer 90

someone’s life, liberty, or property

Question 91

When has a deprivation of liberty occurred?

Answer 91

If there is the loss of a significant freedom provided by the Constitution or a statute.

Question 92

When has a deprivation of property occurred?

Answer 92

If a person has an entitlement (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fulfilled.

Question 93

Is gov’t negligence sufficient for a deprivation of due process?

Answer 93

NO–generally, there must be intentional gov’t action or at least reckless action for liability to exist.

Question 94

How does an emergency situation affect government liability under due process?

Answer 94

In emergency situations, the gov’t is only liable under due process if its conduct “shocks the conscience.”

Question 95

Does the gov’t failure to protect people from privately inflicted harms constitute a denial of due process?

Answer 95

Generally no.

Question 96

To determine what process is due, what three factors are balanced?

Answer 96

1. The importance of the interest to the individual.
2. The ability of additional procedures to increase the accuracy of the fact-finding.
3. The government’s interests; usually efficiency and saving money.

Question 97

What process is required to terminate welfare benefits?

Answer 97

Both notice and a pre-termination hearing

Question 98

What process is necessary to terminate social security disability benefits?

Answer 98

Only a post-termination hearing

Question 99

What process is necessary to permanently terminate a parent’s right to custody?

Answer 99

Both notice and a hearing

Question 100

What process is necessary to institutionalize an adult?

Answer 100

Both notice and a hearing

Question 101

Is harm to reputation a loss of liberty?

Answer 101

NO–Not by itself. But harm to reputation when coupled with denial of a gov’t benefit can be a loss of liberty.

Question 102

What is the usual outcome of prisoners suing to assert a loss of liberty?

Answer 102

Prisoners almost always lose.

Question 103

What process is required for punitive damages awards?

Answer 103

Jury instructions to guide discretion and judicial review to ensure reasonable awards.

Question 104

To what process is a non-citizen held as an enemy combatant entitled?

Answer 104

The ability to challenge their continued detention

Question 105

A U.S. citizen facing criminal charges in a foreign country held by the American military can do what?

Answer 105

File a habeas corpus petition and seek review of their detention in federal court

Question 106

When does due process require recusal of a judge?

Answer 106

When there is a substantial risk of actual bias.

Question 107

In what two areas has substantive due process been used?

Answer 107

1. Protecting economic liberties

2. To safeguard property

Question 108

Substantive due process asks whether government has _______________________________

Answer 108

an adequate reason for taking away a person’s life, liberty, or property

Question 109

What protection does the Constitution provide to economic liberties?

Answer 109

Only minimal protection–rational basis test is used for laws affecting economic rights

Question 110

What test is used for laws affecting economic rights?

Answer 110

Rational basis test

Question 111

Under what authority may the gov’t take private property, and for what reason?

Answer 111

Under 5th Amdmt takings clause, gov’t may take private property for public use but only if it provide just compensation.

Question 112

What is the test for the takings clause?

Answer 112

1. Is there a taking?
2. Is it for public use?
3. Is just compensation paid?

Question 113

Exam: Question has DP challenge to gov’t regulation affecting an economic interest–what answer?

Answer 113

Rational basis review, gov’t wins

Question 114

Two ways to find a gov’t taking

Answer 114

1. Possessory taking–gov’t confiscation or physical occupation of property is ALWAYS a taking–no matter how small
2. Regulatory taking–gov’t regulation is a taking if it leaves no reasonable economically viable use of the property

Question 115

What limitation exists on government conditions on development of property?

Answer 115

Gov’t conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise it is a taking

Question 116

Can a property owner bring a challenge to regulations that existed at the time the property was acquired?

Answer 116

YES

Question 117

Is temporarily denying an owner use of property (developing property) a taking?

Answer 117

NO–so long as the government’s action is reasonable

Question 118

How to tell if a taking is for public use?

Answer 118

If the government acts out of reasonable belief that the taking will benefit the public.

Question 119

How to measure just compensation for a taking?

Answer 119

Just compensation is measured in terms of loss to the owner in reasonable market value terms; the gain to the government is irrelevant

Question 120

What does the contracts clause state?

Answer 120

No state shall impair the obligations of contracts.

Question 121

To what contracts does the contracts clause apply?

Answer 121

Only to state or local interference with already existing contracts.

Question 122

To what entities does the contracts clause apply?

Answer 122

State and local governments–NOT the federal gov’t

Question 123

What level of scrutiny must be met for a state or local gov’t to interfere with existing contracts?

Answer 123

Intermediate scrutiny. The language for the test in this situation is:

• -Does the legislation substantially impair a party’s rights under an existing K?
• -If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate gov’t interest?

Question 124

What level of scrutiny must state or local interference with government Ks meet?

Answer 124

Strict scrutiny

Question 125

When does the ex post facto clause apply?

Answer 125

In civil cases, not criminal cases

Question 126

What level of scrutiny must be met for depriving a privacy right?

Answer 126

Strict scrutiny

Question 127

What fundamental rights are included in privacy rights?

Answer 127

marry; procreate; custody of one’s children; keep the family together; control the upbringing of your kids; purchase and use contraceptives; abortion; engage in private consensual same-sex activity; refuse medical treatment; travel; vote

Question 128

Right to custody of one’s children: how may it be terminated?

Answer 128

Only if state proves a compelling reason such as parental abuse or neglect.
State may create irrebuttable presumption that a married woman’s husband is the father of her child.

Question 129

Right to keep the family together

Answer 129

Protected as fundamental right; broader than concept of parents and children, but has to be familial relationship.

Question 130

How may states regulate abortion prior to viability?

Answer 130

Prior to viability, states cannot prohibit abortions, but may regulate abortions so long as they do not create an udue burden on the ability to obtain abortions.
Ex.-24-hr waiting period; requirement of licensed physician; prohibition on partial birth abortion

Question 131

How may states regulate abortion after viability?

Answer 131

After viability, states may prohibit abortions unless necessary to protect the woman’s life or health.

Question 132

What is the status of spousal consent and notification laws prior to abortion?

Answer 132

They are unconstitutional

Question 133

May a state require parental notice and consent prior to an unmarried minor having an abortion?

Answer 133

YES–so long as there is an alternative procedure where minor can obtain abortion by getting judge’s approval

Question 134

What is the level of scrutiny for law affecting right to private consensual same-sex activity?

Answer 134

No level of scrutiny has been articulated

Question 135

What are the contours of the right to refuse medical treatment?

Answer 135

Competent adults have the right to refuse medical treatment–no level of scrutiny artticulated.
State may require clear & convincing evidence that a person wanted treatment terminated.

Question 136

What are the contours of the right to bear arms?

Answer 136

Individuals have a right to have weapons of self-defense–no level of scrutiny articulated

Question 137

What level of scrutiny must laws preventing people from moving into a state meet?

Answer 137

Strict scrutiny

Question 138

What level of scrutiny must durational residency requirements meet?

Answer 138

Strict scrutiny. These require a person to live in a jurisdiction for a specified amount of time to get a benefit.

Question 139

What is the maximum allowable residency requirement for voting purposes?

Answer 139

50 days

Question 140

What are the contours of the right to international travel?

Answer 140

There is no fundamental right to int’l travel; restrictions must only meet rational basis test

Question 141

Laws that deny some citizens the right to vote must meet _____________ scrutiny

Answer 141

strict

Question 142

What are at-large elections? When are they constitutional?

Answer 142

Elections where all voters cast a vote for all officeholders are constitutional UNLESS there is proof of a discriminatory PURPOSE–impact is not enough

Question 143

The use of race in drawing election district lines for the purpose of benefiting minorities must meet ____________ scrutiny.

Answer 143

strict

Question 144

Counting uncounted votes without standards in a presidential election violates _____________________

Answer 144

equal protection

Question 145

Is there a fundamental right to education?

Answer 145

NO–rational basis review

Question 146

When is there a basis for an equal protection challenge?

Answer 146

When the gov’t draws a distinction among people.

Question 147

Three steps for answering equal protection questions

Answer 147

1. What is the classification? (How is the gov’t distinguishing among people?)
2. What level of scrutiny should be applied? (usually RB on exam)
3. Does this law meet the level of scrutiny?

Question 148

To what levels of government does the equal protection clause of the 14th Amendment apply?

Answer 148

State and local gov’ts; NOT the federal gov’t

Question 149

Through what constitutional provision is equal protection applied to the federal gov’t?

Answer 149

The due process of the 5th Amendment.

Question 150

To what classifications is strict scrutiny applied?

Answer 150

Discrimination based on RACE or COUNTRY OF ANCESTOR ORIGIN.

Question 151

Two alternative ways to prove the existence of a racial classification?

Answer 151

1. The classification exists on the face of the law.
2. If the law is race-neutral on its face, must demonstrate BOTH
   - -discriminatory IMPACT, and
   - -discriminatory INTENT

Question 152

What is the status of discriminatory use of peremptory challenges (jury)?

Answer 152

Discriminatory use of peremptory challenges based on race or gender denies equal protection.
–Can’t systematically remove AAs or women from a jury.

Question 153

What level of scrutiny is applied to racial classifications benefiting minorities?

Answer 153

Strict scrutiny

Question 154

Numerical set-asides in favor of minorities require clear proof of ___________________

Answer 154

past discrimination

Question 155

How may educational institutions use race in admissions decisions?

Answer 155

They may use race as one factor in admissions decisions to benefit minorities and enhance diversity.
–But CANNOT set aside slots/add points SOLELY based on race.

Question 156

How may public school systems use race as a factor in assigning students to schools?

Answer 156

They may NOT unless strict scrutiny is met.

Question 157

What level of scrutiny is used for sex-based discrimination, and what is the standard for justification of discrimination based on gender?

Answer 157

Intermediate scrutiny is used for sex-based discrimination and discrimination based on gender can only be allowed if there is exceedingly persuasive justification.

Question 158

Two ways to prove existence of gender classification?

Answer 158

1. Classification exists on the face of the law.
2. If law is facially gender-neutral, must demonstrate BOTH
   - -discriminatory IMPACT, and
   - -discriminatory INTENT

Question 159

How do courts treat gender classifications benefiting women?

Answer 159

Classifications benefiting women based on role stereotypes are not allowed.
Classifications benefiting women designed to remedy past discrimination of differences in opportunity will be allowed.
–e.g. SS uses different formula to calculate woman’s benefit

Question 160

Generally, laws that discriminate against non-citizens must meet ____________ scrutiny.

Answer 160

Strict

Question 161

What privileges may be reserved to citizens without violating equal protection? What level of scrutiny is applied to such laws?

Answer 161

Those integral to self-government: Voting; jury service; police officer; teacher; probation officer
Laws must pass rational basis review.

Question 162

What test is applied when Congress discriminates against aliens?

Answer 162

only a rational basis test

Question 163

What level of scrutiny is applied to discrimination against undocumented alien children?

Answer 163

Intermediate scrutiny

Question 164

What level of scrutiny is applied to discrimination against non-marital children (legitimacy classifications)?

Answer 164

Intermediate scrutiny

Question 165

What is the test for laws that deny a benefit to all non-marital children but grant it to all marital children?

Answer 165

Intermediate scrutiny

Question 166

What is the level of scrutiny for age discrimination?

Answer 166

rational basis review

Question 167

What is the level of scrutiny for disability discrimination?

Answer 167

rational basis review

Question 168

What is the level of scrutiny for wealth discrimination?

Answer 168

rational basis review

Question 169

What is the level of scrutiny for sexual orientation discrimination?

Answer 169

rational basis review

Question 170

What are two alternative ways of finding that a law is content-based?

Answer 170

1. Subject-matter restriction–application of the law depends on the topic of the message
2. Viewpoint restriction–application of the law depends on the ideology of the speech

Question 171

What is the level of scrutiny for content-based restrictions on speech?

Answer 171

Strict scrutiny

Question 172

What is the level of scrutiny for content-neutral laws burdening speech?

Answer 172

Intermediate scrutiny

Question 173

What is prior restraint?

Answer 173

Stopping speech before it occurs.

Question 174

What is the level of scrutiny for court orders suppressing speech?

Answer 174

Strict scrutiny

Question 175

What is the effect of failure to comply with a procedurally proper court order suppressing speech?

Answer 175

A person who violates a court order is barred from later challenging it.

Question 176

Gag orders on the press to prevent prejudicial ______________________ are not allowed.

Answer 176

pre-trial publicity

Question 177

Until what time must a person comply with a court order suppressing speech?

Answer 177

Until it is vacated or overturned.

Question 178

Exam: Court issues injunction to prevent speech–what is the correct answer?

Answer 178

Gag order is ALWAYS unconstitutional, but you must comply or lose the right to challenge.

Question 179

Under what circumstances may the gov’t require a license for speech?

Answer 179

If there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Also must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.

Question 180

When is a law regulating speech unconstitutionally vague?

Answer 180

When a reasonable person cannot tell what speech is prohibited and what is allowed.

Question 181

When is a law unconstitutionally overbroad?

Answer 181

If it regulates substantially more speech that the constitution allows to be regulated.

Question 182

What is the status of fighting words vis-a-vis the 1st Amendment?

Answer 182

Fighting words are not protected speech, but statutes attempting to punish the use of such words are often found to be void for vagueness.

Question 183

Under what circumstances may the gov’t regulate symbolic speech (i.e. conduct that communicates)?

Answer 183

If the gov’t has an important interest unrelated to suppression of the message, and
If the impact on communication is no greater than necessary to achieve the gov’t goal

Question 184

Is flag burning protected speech?

Answer 184

YES

Question 185

Is draft card burning protected speech?

Answer 185

NO

Question 186

Is nude dancing protected speech?

Answer 186

NO

Question 187

Is burning a cross protected speech?

Answer 187

YES–UNLESS done with intention of threat or intimidation

Question 188

What is the constitutional status of contribution limits and expenditure limits?

Answer 188

Contribution limits in election campaigns are allowed.

Expenditure limits in campaigns are NOT allowed.

Question 189

T/F–Anonymous speech is protected by the 1st Amendment.

Answer 189

TRUE–there is a right not to disclose your identity

Question 190

May a state publicly disclose names and addresses of people who sign ballot petitions?

Answer 190

YES–based on strength of state’s interest in promoting transparency and accountability in elections

Question 191

What is the test for whether speech constitutes incitement of illegal activity?

Answer 191

The gov’t may punish speech if there is a substantial likelihood of imminent illegality and if the speech is directed to causing imminent illegality.

Question 192

What is the test for whether speech is obscene?

Answer 192

1. The material must appeal to the prurient interest, or a shameful or morbid interest in sex.
2. The material must be patently offensive.–LAW MUST BE PRECISE, local standard
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value as determined by a national standard

Question 193

May the gov’t use zoning ordinances to regulate the number or location of adult bookstores and movie theaters?

Answer 193

YES

Question 194

What is the test for whether material is child pornography? Can child porn be completely banned?

Answer 194

To be child porn, children must be used in production of the material.
The gov’t may completely ban child porn.

Question 195

May the gov’t punish private possession of obscene materials? What about child porn?

Answer 195

The gov’t may NOT punish private possession of obscene materials, but the government MAY punish private possession of child porn.

Question 196

May the gov’t seize the assets of businesses convicted of violating obscenity laws?

Answer 196

YES

Question 197

Is profane and indecent speech protected by the 1st Amendment?

Answer 197

Generally, yes.

Question 198

What are exceptions to the general rule that profane and indecent speech is protected by the 1st Amendment?

Answer 198

• -Free, over-the-air broadcast media

- -In schools

Question 199

What type of commercial speech can be prohibited?

Answer 199

• -Advertising for illegal activity, false and deceptive ads

- -True commercial speech that inherently risks deception

Question 200

To help reduce a rising crime rate among teenage boys in a city, a scout leader decided to organize an overnight jamboree to get teens interested in scouting. The scout leader met with the city’s parks commissioner and requested a permit to camp at a large city park located on the oceanfront. The parks commissioner told the scout leader that a city ordinance prohibited large organized use of the park during the evening and all overnight camping. The commissioner explained that the city wished to keep the park open for general use during the evening, when most people were off work, and the park was cleaned overnight. The scout leader brought an action in federal district court, seeking to compel the city to allow overnight camping for this one special occasion.

If the court determines that the ordinance is valid, what will be the basis for its decision?

A The ordinance is rationally related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.
B The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.
C The ordinance is substantially related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.
D The ordinance is rationally related to a legitimate government interest and does not unreasonably limit alternative channels of communication.

Answer 200

B The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.

The court will base its decision on its determination that the ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication. While the First Amendment protects the freedoms of speech and assembly, the government may reasonably regulate speech-related conduct in public forums through content‑neutral time, place, and manner regulation. To be valid, government regulations on speech and assembly in public forums must be content neutral and narrowly tailored to serve an important government interest, and must leave open alternative channels of communication. Here, the ban on camping overnight in the park, a content-neutral regulation of a public forum, would be evaluated by the court using the standard in choice (B). (A) and (D) are incorrect because the rational relationship test is used for restrictions on free speech rights in nonpublic forums. Here, because the park is a public forum, the more restrictive test stated in (B) is used. (C) is incorrect because it misstates both parts of the standard.

Question 201

A plaintiff brought an action in federal court against a state government, seeking monetary damages. The state moved to have the case dismissed for lack of jurisdiction, citing the Eleventh Amendment of the United States Constitution.

Which of the following facts would support a denial of the state’s motion?

A The plaintiff is a private citizen of the defendant state.
B The plaintiff is a Native American tribe.
C The plaintiff is a neighboring state.
D The plaintiff is a foreign government.

Answer 201

C The plaintiff is a neighboring state.

The state’s motion should be denied if the plaintiff is a neighboring state. The Eleventh Amendment does not bar actions by one state government against another state government. (A) is incorrect. As a general rule, under the Eleventh Amendment, a federal court may not hear a private party’s or a foreign government’s claims against a state government. A private state citizen is a private party. As such, the Eleventh Amendment generally bars a private citizen from suing a state government in federal court. (B) is incorrect because the Supreme Court has held that, for Eleventh Amendment purposes, a Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court. (D) is incorrect because the Eleventh Amendment bars actions brought by a foreign government against a state government.

Question 202

A state statute was struck down by the supreme court of the state on the grounds that it was in conflict with the Supremacy Clause of the United States Constitution as well as the Equal Protection Clause of the state constitution.

Does the United States Supreme Court have jurisdiction to hear an appeal of the state supreme court’s decision?

A Yes, because the Supreme Court has original jurisdiction of all cases in which a state is a party.
B Yes, because the requirements for an appeal to the United States Supreme Court are met under the facts.
C No, because the requirements of certiorari are not met under the facts.
D No, because of the “adequate and independent state ground” theory.

Answer 202

D No, because of the “adequate and independent state ground” theory.

The Supreme Court probably would not review the state decision because of the “adequate and independent state ground” theory. The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. Here, the judgment is, in part, based on a violation of the Equal Protection Clause of the state constitution, which is an adequate and independent state ground on which the decision would rest even if the federal issue were resolved (assuming that the state court’s disposition of the state constitutional issue did not depend on federal doctrines). (A) is wrong because this is a question of appellate jurisdiction, not original jurisdiction. (B) is wrong because this type of case would not meet the very narrow requirements of appeal. (C) is wrong because if it were not for the adequate and independent state ground, this type of challenge could be heard by the Court in its discretion.

Question 203

As an aide to a member of the Congress of the United States, you are expected to provide an analysis of the constitutionality of proposed legislation that your employer is called to vote on. A bill has been proposed that would create a mandatory price schedule for every motor vehicle sold in the United States.

Which of the following should you tell your employer is the strongest constitutional basis for the proposed legislation?

A All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce.
B Because the purchase or sale of a motor vehicle, by definition, involves commerce, the federal government may regulate such transactions under the commerce power.
C Congress has the power to regulate transportation in the United States.
D Congress has the power to legislate for the general welfare of the people of the United States.

Answer 203

A All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce.

As part of its power to regulate interstate commerce, Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce. Because all motor vehicle transactions in the United States, in the aggregate, have a significant impact upon interstate commerce (as (A) states), Congress is constitutionally empowered to regulate such transactions by, e.g., enacting a mandatory price schedule. (B) is incorrect because the price of a vehicle manufactured and sold in one state may have no effect upon interstate commerce; i.e., it may not affect or involve more than one state. While Congress does have the power to determine that these individual transactions do in fact have an impact on interstate commerce, they do not come within the federal government’s Commerce Clause power merely because they involve “commerce.” (C) is incorrect because it is too broad. Congress is empowered to regulate transportation that constitutes interstate commerce. However, there is no congressional power to regulate transportation as such. (D) is incorrect because Congress may tax and spend to provide for the general welfare. The General Welfare Clause does not, however, authorize Congress to enact nonspending legislation or regulations for the general welfare.

Question 204

The President of the United States and the king of a foreign nation entered into a treaty agreeing that citizens of the foreign nation who reside in the United States would not be taxed by the United States and that United States citizens who reside in the foreign nation would not be taxed by it. The treaty was ratified by the United States Senate and the royal council of the foreign nation. One year after the treaty became effective, the foreign nation began to tax United States citizens within its borders. The President immediately declared the tax treaty to be void and ordered the Internal Revenue Service to tax citizens of the foreign nation living in the United States.

Is the President’s action constitutional?

A Yes, because the President has emergency powers to protect United States citizens.
B Yes, under the foreign policy powers of the President.
C No, because the treaty is the supreme law of the land, on par with federal legislation, and the President is not free to ignore it.
D No, unless the President receives the advice and consent of the United States Senate.

Answer 204

B Yes, under the foreign policy powers of the President.

The President’s action is constitutional pursuant to his power over treaties and foreign relations.The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even as to foreign relations that require congressional consent, the President’s powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations. Thus, this action is allowable under these broad powers. (A) is incorrect because the President’s emergency power to protect United States citizens is unclear. While he has power to act concerning foreign nations, it is unclear whether he could “legislate” concerning the internal affairs involved here (e.g., tax collection) merely because he thought that United States citizens needed protection. In any case, the power to act here more properly arises from the President’s power over foreign affairs and not from a power to protect United States citizens. (C) is incorrect because while it is true that properly ratified treaties are the supreme law of the land, that only means that conflicting state or local laws must yield. If the President has power to override the treaty (which he does have, as explained above), the Supremacy Clause is not controlling. (D) is incorrect because the Constitution only requires the President to obtain the advice and consent of the Senate to enter into treaties; it does not require him to obtain Senate consent to void a treaty.

Question 205

To help alleviate discrimination in private contracts, Congress passed a bill providing:

It shall be unlawful to discriminate against African-Americans in the making and enforcement of any commercial transaction, of every kind whatsoever. Any person whose rights under this statute are violated may bring a cause of action against the party that has so violated the person’s rights in the federal district court for the district in which he resides, seeking treble damages or $1,000, whichever is greater.

Several large banks that have been accused of discriminatory loan practices challenge the federal statute.

Is the statute likely to be found constitutional?

A Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery.
B Yes, because the federal government has an important interest in furthering the equal protection provisions of the Fourteenth Amendment.
C No, because Congress’s powers under the Commerce Clause do not extend so far as the statute would require.
D No, because commercial transactions are not among the privileges or immunities of national citizenship.

Answer 205

A Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery.

The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the Thirteenth Amendment. The Thirteenth Amendment prohibits slavery.The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery. Because the statute at issue bans all discrimination against African‑Americans in commercial transactions, it necessarily reaches private conduct. Such congressional action is constitutionally permissible pursuant to the Thirteenth Amendment. (B) is incorrect. Application of the Fourteenth Amendment has been limited to cases involving state action. [See United States v. Morrison (2000)] The statute here reaches private action, and so the Thirteenth Amendment is the correct source for the law, since that amendment addresses private action. (C) is incorrect because, even if Congress’s power over interstate commerce would not reach every commercial transaction, the statute would be enforceable under the Thirteenth Amendment, as discussed above. (D) is incorrect because it is irrelevant. While it is true that the commercial transactions here are not among the privileges or immunities of citizenship (which include rights such as the right to petition Congress for redress and the right to interstate travel), the law can be based on the Commerce Clause or the Thirteenth Amendment, and thus is constitutional.