Con Law

Question 1

11th Amendment

Answer 1

You cannot sue a state for state damages in either state or federal court unless the state consents or the U.S. Congress expressly says so to enforce 14th Amendment rights.

Question 2

13th Amendment

Answer 2

Abolishes slavery, and involuntary servitude, except as punishment for a crime.

Congress has broad power to legislate against racial discrimination, whether public or private.

Question 3

14th Amendment

Answer 3

contains the Privileges or Immunities Clause, the Due Process Clause, the Equal Protection Clause.

Question 4

15th Amendment

Answer 4

Prohibits the denial of the right to vote based on race, color, or previous condition of servitude.

Question 5

SCOTUS original JX under Con

Answer 5

cases affecting ambassadors, ministers and consuls, and also in those controversies which are subject to federal judicial power because at least one state is a party

Question 6

Limitations on the Supreme Court’s appellate jurisdiction

Answer 6

Congress can make exceptions to the Court’s appellate jurisdiction. In other words, Congress can effectively control the Supreme Court’s docket (its appellate jurisdiction) by legislating exceptions to its appellate jurisdiction.

Question 7

Is “necessary and proper clause” an answer on the MBE?

Answer 7

Almost never. works in conjunction w/ other clauses (i.e. power to carry out other duties)

Question 8

Power under Commerce Clause

Answer 8

Congress can regulate:

• The channels of interstate commerce (highways, seaways, airways, etc.);
• The instrumentalities of interstate commerce (cars, trucks, ships, railroads, etc.); and
• Intrastate [and interstate] activity (economic or commercial) that has a substantial effect on interstate commerce. (judge in aggregate)

Question 9

Taxing and Spending Power

Answer 9

• tax must be rationally related to raising revenue
• tax must be proportional to population (i.e. no property tax)
• can spend for the general welfare

Question 10

Anti-Commandeering

Answer 10

Congress cannot force states to adopt or enforce regulatory programs. It cannot commandeer state and local officers to carry out federal programs.

Question 11

Pardon Power

Answer 11

The President can pardon or commute punishment for all FEDERAL offenses. (Governors have a similar power for state crimes.) This power cannot be limited by Congress.

Question 12

Hierarchy of Laws (treaties, fed, state)

Answer 12

(1) Fed Law / Treaties (need 2/3 Senate approval)
(2) Executive Agreements (presidential negotiations not submitted for approval by the Senate)
(3) State Law

Question 13

Congressional approval of Presidential Spending

Answer 13

• If a statute gives the President discretion to spend or withhold funds, he may do so.
• But, when a statute unambiguously requires that funds be spent, the President cannot refuse to do so. There is no power to “impound” funds.

Question 14

Legislative Veto

Answer 14

Happens when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution - UNCONSTITUTIONAL

Question 15

Presidential Immunity

Answer 15

(1) Has absolute immunity for official acts
(2) Has no immunity for acts done prior to taking office
(3) Has an executive privilege not to reveal confidential communications with presidential advisers, (but can be trumped by a specifically demonstrated need in a criminal prosecution (e.g. Nixon))

Question 16

Judicial Immunity

Answer 16

Judges have absolute immunity for all judicial acts, but may be liable for non-judicial activities.

Question 17

Congressional Immunity

Answer 17

• U.S. Senators and Representatives (not state legislators) are protected by the “Speech or Debate Clause.
• Senators and Congressmen and their aides cannot be prosecuted or punished in relation to their official acts.
• The official acts of a federal legislator cannot be introduced into evidence. (even for bribery charge)

Question 18

19th Amendment

Answer 18

Prohibits the denial of the right to vote based on sex.

Question 19

21st Amendmet

Answer 19

Repeals the 18th Amendment and gives the States the power to prohibit or regulate the transportation or importation of alcohol for delivery or use.

Question 20

Intergovernmental Immunity (state vs. fed; tax and other liability)

Answer 20

• The federal government is generally immune from direct state regulation or taxation. However, states can tax indirectly, such as taxing the income of federal employees.
• States are not immune from direct federal regulation (for example: pollution regulations, employment laws, etc.).
• State laws cannot shield state officers from federal liability.

Question 21

Privileges and Immunities of State Citizenship under Article IV (Comity Clause)

Answer 21

Forbids serious discrimination against out-of-state individuals, absent substantial justification.

Does not protect out-of-state corporations.

Question 22

Dormant Commerce Clause (+ exceptions)

Answer 22

In absence of fed regulation, state regulation is OK so long as…

1) There is no discrimination against out-of-state interests
2) The regulation does not unduly burden interstate commerce; and
3) The regulation does not apply to wholly extraterritorial activity.

Exceptions:

• state as market participant can choose not to deal w/o out of state
• Subsidies—A state can always choose to subsidize only its own citizens (for example, welfare benefits or in-state college tuition)
• congressional approval

Question 23

State taxation of interstate commerce

Answer 23

Non-discriminatory taxation is valid if the following two requirements are met:
1) Must be a substantial nexus between the taxing state
and the property or activity to be taxed
2) Must be a fair apportionment of tax liability among states

Question 24

Interstate Compacts

Answer 24

States can make interstate compacts, but if the compact affects federal rights, Congress must approve.

Question 25

When is the state “significantly involved” in private discrimination?

Answer 25

• when it facilitates the discrimination
• when it profits from the discrimination
• when it enforces a private agreement to discriminate

Question 26

Test to Decide what process is due

Answer 26

weigh. .
1) The individual interest at stake (life, liberty, property);
2) The value of the procedure in protecting that interest; and
3) The government’s interest in efficiency and cost.

Question 27

Strict Scrutiny

Answer 27

Test:
o Is the law necessary for a compelling government interest? (least restrictive means)

Applies when there is a suspect classification or fundamental right

Question 28

Intermediate Scrutiny

Answer 28

Test: Is the law substantially related to an important government interest?

Applies to classifications based on gender and illegitimacy

Question 29

Rational Basis

Answer 29

Test: is the law rationally related to a legitimate interest

challenger bears the burden

Question 30

Fundamental Interests

Answer 30

• interstate travel
• voting and ballot access
• privacy

Question 31

Ballot Access

Answer 31

• States can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidates can reasonably comply.
• If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional.
• states cannot require open primaries

Question 32

How do you show discriminatory purpose under the EP clause?

Answer 32

• explicit on the face of the statute
• history of discriminatory application
• extrinsic evidence about the purposes of those who passed the law.

Question 33

When is affirmative action OK?

Answer 33

when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action.

Question 34

P and I: 4th or 14th?

Answer 34

Privileges or Immunities of National Citizenship under the 14th Amendment - means nothing today (so never the correct answer on the MBE)

Question 35

which DP clause applies to whom?

Answer 35

o 5th Amendment applies to the Federal government.

o 14th Amendment applies to states and localities.

Question 36

which EP clause applies to whom?

Answer 36

TRICK QUESTION! EP only in the 14th and only applies to states, BUT EP concepts are applied to the federal government via the Due Process Clause of the 5th Amendment

Question 37

Suspect Classifications: Alienage

Answer 37

Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest

2 exceptions:
(1): Federal government
• Congress has plenary power over citizenship and naturalization.
• Federal classifications based on U.S. citizenship do not trigger strict scrutiny - valid unless arbitrary and unreasonable
(2): State and Local participation in government functions: (jobs, duties) - BUT cannot require for gov. benefits

Question 38

Public Use requirement under Takings Clause

Answer 38

need only be rationally related to a conceivable public purpose

Question 39

Takings Clause states…

Answer 39

Private property shall not be taken for public purpose without just compensation.

Question 40

Zoning and ex post facto justifications

Answer 40

A OK: gov’s stated interest in court doesn’t have to be the same as one offered when passed

Question 41

Extortion for Development permits

Answer 41

Development is often conditioned on “concessions” by the developer, such as building an access road or donating land to a park. Such extractions are valid so long as they can be seen as offsetting the adverse impact of the development.

Question 42

Bill of Attainder vs. Ex Post Facto

Answer 42

• Bill of Attainder—A bill of attainder is a legislative punishment imposed without judicial trial and is unconstitutional. (i.e. directed to a specific party)
• Ex Post Facto Laws—Unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct. (can be in reaction to a specific person, but broad sweeping)

Question 43

is it OK under the Establishment Clause?

Answer 43

Lemon Test:
o Does the law have a secular purpose?
o Does the law have a primary effect that neither advances nor inhibits
religion?
o Does the law avoid excessive entanglement religion

Question 44

Regulation of Religious Conduct

Answer 44

• Laws regulating religious conduct because of its religious significance are unconstitutional (i.e., laws aimed at religion).
• Neutral regulation of conduct: neutral, generally applicable laws can be enforced despite religious objections.

Question 45

Laws regulating expressive conduct

Answer 45

Laws regulating expressive conduct are upheld if:

(1) They further an important interest;
(2) That interest is unrelated to the suppression of expression; and
(3) The burden on expression is no greater than necessary.

Question 46

Laws regulating TPM: public forum

Answer 46

(1) Must be content neutral on its face and as applied.
Also, must not allow executive discretion.
(2) Alternative channels of communication must be left open
(3) Must narrowly serve a significant state interest (basically anything that makes sense to a judge - not as high as compelling state interest)

Question 47

laws regulating speech in a private forum

Answer 47

basically any reasonable regulation of speech will be upheld

Question 48

Obscenity Exception Reqs

Answer 48

(1) appeals to prurient interest
(2) patently offensive to the average person
(3) lacks serious value (national standard)

Question 49

Unprotected Speech Categories

Answer 49

• obscenity
• incitement (to immediate violence)
• fighting words (likely to provoke immediate breach of the peace)
• defamation

Question 50

Regulation of Commercial Speech

Answer 50

Regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest. (intermediate scrutiny)