Con Law

Question 1

A statute regulating speech based on content must be:

Answer 1

necessary to serve a compelling state interest (strict scrutiny)

Question 2

A time, place, and manner regulation of a limited public forum must be:

Answer 2

• viewpoint neutral

- rationally related to a legitimate government interest

Question 3

A regulation that is overbroad, but does NOT prohibit a SUBSTANTIAL amount of protected speech - may it be enforced?

Answer 3

Regulation will be enforced against people whose speech is not protected, but will not be enforced against people engaged in protected speech

Question 4

A regulation that is overbroad and prohibits a substantial amount of protected speech when judged in relation to its plainly legitimate sweep - may it be enforced?

Answer 4

No - it is facially invalid and cannot be enforced against anyone.

Question 5

Can the government regulate commercial speech?

Answer 5

Yes - but only if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest.

Question 6

When can speech be sanctioned under the clear and present danger test?

Answer 6

When speech is directed to produce or incite IMMINENT lawless action and is likely to produce such action

Question 7

Deprivation of liberty

Answer 7

A person has been deprived of liberty if she

(i) loses significant freedom of action; or
(ii) is denied a freedom provided by the Constitution or a statute.

Question 8

Factors the court will consider in determining the procedures required for proper due process:

Answer 8

i) Importance of the individual interest
ii) value of specific safeguards to that interest
iii) government’s interest in efficiency

Question 9

When a government action based on gender classifications is challenged, what standard applies?

Answer 9

Intermediate scrutiny - classification (the law/action) will be upheld if govt can prove that it is substantially related to an important government interest

Ex. classifications benefiting women designed to remedy past discrimination will generally be upheld because remedying past gender discrimination is an important govt interest

Question 10

For a plaintiff to have standing to bring case in federal court requires:

Answer 10

Injury in fact - specific injury, cannot be theoretical
Causation
Redressibility - that a favorable ruling will eliminate the harm to plaintiff

Question 11

What is the scope of Congress’s spending power?

Answer 11

Congress may spend to achieve any public purpose that does not violate the Constitution

Congress can use spending measures to impose requirements by attaching strings to federal money, and regulate activity it cannot otherwise regulate - (e.g., require the recipient to act in a certain way)

Question 12

What is the scope of Congress’s commerce power?

Answer 12

• all transportation that constitutes interstate commerce
• any transmissions across state lines - electricity, gas, TV, phone, radio, mail, internet
• any activity (local or interstate) that has a substantial effect on interstate commerce

Question 13

Youngstown framework regarding President’s power:

Answer 13

(i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
(ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and
(iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid, at least if Congress has acted constitutionally.

Question 14

Requirements for executive agreements -

Answer 14

• must not conflict with existing federal statutes, treaties, or Constitution
• do NOT require advice & consent of the senate
• MAY conflict with state law, and state law becomes unenforceable

Question 15

Is government action valid under the Establishment Clause?

Answer 15

Government action is valid if:

• Action has a secular purpose
• Primary effect does not inhibit or advance religion
• Action does not produce excessive entanglement with religion

Question 16

The Free Exercise Clause prohibits…

Answer 16

The government from punishing conduct just because it is religious. The intent of a law cannot be to interfere with religion

Religiously neutral laws of general applicability are valid even without religious exemptions

Question 17

Market Participant Exception

Answer 17

An exception to the Dormant Commerce Clause
– If the state itself is a market participant, it is allowed to favor its own citizens (NOT restricted by the Dormant Commerce Clause)
Ex. paying residents more for something than it would pay a nonresident

No market participant exception to the Privileges and Immunities Clause

Question 18

What constitutes a taking under the Fifth Amendment?

Answer 18

Physical appropriation, destruction, physical invasion

Ex. govt regulation that authorizes permanent use of private property by the general public

**Mere decrease in value of the property does NOT constitute a taking

Question 19

When is strict scrutiny triggered for a government action that has a race classification?

Answer 19

There must be both

• discriminatory effect AND
• intent to discriminate - can be shown by:
  i) facial discrimination (racial classification appears in the law itself)
  ii) law was applied in discriminatory manner; or
  iii) law was enacted with a discriminatory motive

If discriminatory effect and discriminatory intent are shown, then discriminatory classification will be upheld only if it is necessary to serve a compelling govt interest (strict scrutiny)

If law does NOT discriminate, then challenger has difficult burden of proof to show that statute is not rationally related to a legitimate state interest

Question 20

If Congress has expressly appropriated funds in a bill, can President decline to spend these funds?

Answer 20

No - President cannot “impound” (refuse to spend) funds that Congress has expressly mandated in an appropriations provision of a bill

Question 21

When will SCOTUS hear a case from state court?

Answer 21

Only if the state court judgment turned on federal grounds
- if the decision would rest on an adequate and independent state ground even if the federal issue were resolved, then SCOTUS will not hear it

Question 22

Regulations of political speech are upheld if:

Answer 22

government can prove that they are necessary to achieve a compelling government interest

Question 23

Free Exercise Clause prohibits:

Answer 23

government from punishing conduct just because it is religious

Question 24

If a government action has a preference for some religious sects over others, will it be upheld?

Answer 24

Only if regulation is narrowly tailored to promote a compelling government interest.

Question 25

Prior restraint

Answer 25

Any regulatory system, injunction or other action by the government that serves to stop speech from reaching the public
**there must be some risk of special societal harm justifying the prior restraint

Safeguards:

• • narrowly drawn, reasonable, and definite standards
• • prompt action seeking an injunction
• • a prompt & final judicial determination of the validity of the restraint

Example justifications for prior restraint:

• maintaining discipline among troops & efficiency of operations on a military base
• a contractually agreed-to restraint btwn govt and an employee (ex. CIA agent)

Question 26

What is the standard for upholding a content-based speech regulation?

Answer 26

Strict scrutiny - upheld only if necessary to serve a compelling govt interest

Question 27

Can the government regulate fighting words?

Answer 27

NONprotected speech - govt may regulate

Examples:

• statements threatening a person of bodily harm
• statements likely to incite physical retaliation
• conduct undertaken with intent to cause fear of bodily harm

A statute that prohibits “abusive language” is overbroad and thus unconstitutional

Question 28

Definition of obscenity

Answer 28

Whether the material, by the average person, applying contemporary community standards -

i) appeals to the prurient interest in sex;
ii) portrays sex in a patently offensive way; and
iii) Does not have serious artistic, literary, political, or scientific value (national standard)

Question 29

What is the standard for a speech regulation in a public forum or designated public forum?

Answer 29

• • must be content neutral
• • narrowly tailored to serve an important interest, and
• • leave open alternative channels of communication

Question 30

What is the standard for a regulation of speech targeting truthful advertisement concerning lawful activities?

Answer 30

Intermediate scrutiny - regulation must serve a substantial government interest, be narrowly tailored to serve that interest, and directly advance that interest

If commercial speech is unlawful or false, it is unprotected speech and can be banned completely.

Question 31

What must Congress show to adopt a valid law under the Enabling Clause of the 14th Amendment?

Answer 31

1) A history or pattern of state violation of existing rights already recognized by the courts
2) legislation that is congruent & proportional to solving the violation

Question 32

What legislation can Congress pass under the 13th Amendment?

Answer 32

can proscribe state action & regulate private conduct that is a “badge of slavery”