Con Law

Question 1

Establishment Clause

Answer 1

If facially prefers some religions over others -> State’s burden strict scrutiny
If facially neutral -> lemon test 1. Purpose of law (secular) 2. Effect (primary not to advance/inhibit religion) 3. Entanglement (not excessive) schools

Question 2

3rd Party Standing

Answer 2

(1) the claimant has suffered a non-constitutional injury; and (2) it would be difficult or unlikely for the party experiencing the constitutional injury to assert their own rights; and (3) there is a “special relationship” between the claimant and the third party. This includes buyer-seller. OR incapacity of the P.

Question 3

Bill of attainder vs. Ex post facto

Answer 3

attainder: legislation that inflicts punishment (1) w/o trial (2) singling out named indivs or in an easily ascertainable group for past conduct.
EPF Art I S9 feds S10 states  new crime in past  more punishment  less evidence  longer SoL after expired

Question 4

Scrutiny for voting laws

Answer 4

Total ban -> strict scrutiny.
Process regulation -> undue burden balancing test / minimum rational basis scrutiny
OK: reasonable residency reqs, registration reqs, time and manner regs, felon disenfranchise, state elector selection
NOT OK: poll tax, school bd only parents and property owners, vague vote counting

Question 5

Contracts Clause

Answer 5

State may not impair existing contracts. Must 1. have existed before 2. be materially impaired BUT PRIVATE Ks can be modified by legislature for public interest and regulation narrowly tailored to that interest. “A private contract may be modified by the legislature under its police power when necessary to serve an important and legitimate public interest, and the regulation is reasonable and narrowly tailored to promote that interest”. PUBLIC Ks no impairing the obligation of public contracts other than to a reasonable degree when the government seeks to modify its own contracts.

Question 6

Taxation Power

Answer 6

1. as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes. 2. Further, even when Congress does not have power to regulate the activity taxed, the tax will be upheld if a. Subjective: the “dominant intent” is to raise revenue and b. Objective: the tax does, in fact, raise revenue–even where it has a substantial regulatory effect. The modern judicial trend is to uphold any tax as valid if it is, in fact, a revenue-raising measure.

Question 7

Substantive Due Process

Answer 7

SCAMPERD: Sexual orientation, Contraception, Abortion, Marriage, Possess obscenity, private Education, family Relations, Death. ALSO 14th Am P and I right to travel, right to vote. FINALLY generally protects against arbitrary and irrational federal government action. Must be rationally related to a legitimate l government interest.

Question 8

Supremacy Clause: Federal Functions

Answer 8

the Supremacy Clause prevents the states from regulating the activities of agents of the federal government if the regulation will interfere with the government’s ability to carry out its federal functions.

Question 9

Free exercise

Answer 9

purposefully interference with religious conduct -> strict scrutiny.

incidentally regulates religious conduct -> 1. Reg. neutral wrt religion 2. General applicability (Smith) so can regulate:

OK to regulate: peyote, polygamy, air force head gear, Amish social security

Question 10

Federalism limits on states

Answer 10

1. functions only sovereign states do 2. individual const. rights 3. preemption 4. sovereign immunity 5. no taxation of federal functions 6. dormant commerce clause (facial and incidental burden)

Question 11

Federalism limits on federal government

Answer 11

1. no taxation for a. unique state govt activities and b. essential state govt functions 2. anti-commandeering OJO! can prohibit things, just not affirmatively require

Question 12

Spending Power

Answer 12

Congress can condition receipt of federal funds on conformity to federal regulations, provided the 1. conditions are reasonably related to the goals of the spending program 2. not coercive 3. for the general welfare 4. not ambiguous

Question 13

Dormant Commerce Clause

Answer 13

• discrim on face: state burden to show 1. Compelling interest AND 2. Discrim necessary to reach that end
• incidental burden: state burden show 1. Important state interest 2. Balance against not excessive burden (NOTE: in state licensing requirements here)
  EXCEPTIONS: Cong. Can authorize OR market participant when state acting like private actor

Question 14

Obscenity

Answer 14

(i) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (ii) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value, as judged by the national standard. Child pornography never protected.

Question 15

Eleventh Amendment Immunity

Answer 15

no $ damages agst states BUT

• states and US P can sue,
• city/county D can be sued,
• inj relief,
• state waiver,
• 13-15 enforcement power abridge

Question 16

Abstention

Answer 16

1. Meaning of state law unclear 2. Avoid const issue OR state ct proceeding going on

Question 17

Congressional power over JDX

Answer 17

lower cts can do anything, USSC can’t stop from hearing fed law, can’t enlarge original USSC JDX

Question 18

Commerce power

Answer 18

1. Channels (water, RR, air)
2. Instrumentalities (goods, ppl, trucks – any motive)
3. Activities w. substantial effect – cumulative (even if entirely w.in one state)
   NOT noneconomic activity – possession, violent crime, loansharking
   BUT yes if part of a comprehensive scheme

Question 19

Congress’s war powers

Answer 19

1. Declare (OJO NOT the president) 2. Raise & support army 3. Navy 4. Militia → draft, $ controls, civilian confinement, cts

Question 20

Enforcement powers

Answer 20

 13th: bans slavery/invol servitude, badges and incidents, reaches private action
 14th: prohibits states from DP, EP, P and I irrational discrim. → congruent & proportional NOTE: abrogation
 15th: prohibits states from race discrim in voting

Question 21

Prez Pardon Power

Answer 21

only offenses agst US. NOT 1. state 2. impeachment 3. civil

Question 22

Prez Military Power

Answer 22

respond to attack NOT declare war, battlefield tactical decisions beat cong.

Question 23

Bill of Rights NOT incorporated

Answer 23

 grand jury (5th)  jury trial in civil (7th)  excessive fines (8th)

Question 24

State NOT EP for out of staters

Answer 24

visitors → privs AND imms Art IV OJO persons only. TEST: if discrim substantially related to substantial interest sep. from discrim. NOT ALLOWED: costlier commercial license, commuter tax, abortion, employment. ALLOWED: recreational license payment, in-state nature preservation

migrants → privs OR imms 14th RtTravel also under substantive due process. OJO persons only. International travel subject to security.

Question 25

Abortion

Answer 25

1. Before viable 2. No undue burden 3. After viable life/health exception
   NOT OK: spousal/parental consent (wo bypass), spousal notification, recording patient names
   OK: PC w. bypass, waiting period, truthful info, refusing public funds, ban not safe methods

Question 26

Regulatory Takings

Answer 26

so onerous tantamount to direct taking. “public use” = public purpose broad
TESTS: 1. permanent physical invasion no matter sml 2. Depravation of all econ beni use 3. Balance econ impact v. govt interest

Question 27

Equal Protection

Answer 27

RB = plaintiff burden show NOT rationally related to legit interest → sexual orientation, alienage for feds

IS = govt burden substantially related to important interest → sex, illegitimacy, maybe undocumented kids. SEE E.G. sex ok in draft, statutory rape age. Af action upheld for general past discrim

SS = govt burden narrowly tailored to a compelling interest → race, alienage (states), national origin, facially discrim dom travel, total ban voting
 af action IF 1. Remedying past discrim (close to affected) 2. Diversity in higher education (one factor, no weight)
 public function exception state alienage: police officers, govt officials, public school teachers, NOT ministerial job

Question 28

Examples: Pass/Fail Establishment Clause

Answer 28

NOT OK: prayer in schools, moment of silence in context, 10 comms in class, graduation prayer, football prayer, 10 comms in couthouse, delegate authority to religious org

OK: religious club, prayer in state legislature, crèche, permit for cross if everyone can get, 10 comms in context, Sundays

tax deductions: neutrality (private schools) OK

aid to religious schools: bus fair, standardized tests, books, lunch, library, computers, interps BUT NOT rel. instruction, rel school

Question 29

Unprotected/Low value Speech

Answer 29

UNprotected: 1. advocating violence 2. fighting words 3. hostile audience 4. obscenity
LOW value: defamation, commercial speech, sexual speech

Question 30

Advocating violence v. Hostile audience

Answer 30

Advocating Violence: state can regulate only where “advocacy directed to inciting or producing imminent lawless action and is likely to” do so

Hostile Audience: speech eliciting immediate violent reaction against speaker. Police must make reasonable efforts to protect speaker first.

Question 31

Fighting words

Answer 31

words likely to incite an ordinary citizen to acts of immediate retaliation. must be MORE than annoying or offensive

Question 32

Defamation

Answer 32

private person + public concern = must prove at least negligence
public official/figure OR media D for false light invasion of privacy = must prove actual malice

Question 33

Commercial speech

Answer 33

if not false/deceptive or relate to unlawful activity, state must show: 1. Substantial gov’t interest 2. Directly advanced by regulation 3. Reg not greater restriction than necessary. Can’t ban drug/legal advertising, can limit

Question 34

Secondary effects of sexual speech

Answer 34

regs must 1. Serve substantial govt interest 2. Reasonable alternatives for communication

Question 35

Free Expression set of questions

Answer 35

 is it protected? 
 is it conduct? 
 public place? → content neutral, TPM? 
 private place? → VP neutral? 
 speaker 
 Overbroad/Vague

Question 36

Test for expressive conduct

Answer 36

incidental burden ok if 1. Imp govt interest 2. Unrelated to content 3. No greater burden than necessary

Question 37

Test for speech restrictions in public places

Answer 37

If public (historically assoc. w expressive conduct) → 1. content neutral 2. Narrowly tailored to important Gov’t interest 3. Leave open reasonable alternatives (TPM regulations)

OK: permiting (not for $$, no discretion), volume/hours, solicitation ID regs, stop mail, protests on sidewalk in front of home, buffer zones (abortion clinics)

NOT OK: ban on door-to-door, regs only on religious door-to-door

Question 38

Test for speech restrictions in nonpublic gov’t property

Answer 38

1. Viewpoint neutral (OJO! Content-based ok) 2. Reasonably related to legit govt interest

Question 39

Special people for first amendment

Answer 39

• gov’t employees:
  1. can be denied emp for political assoc if a. Active member in subversive gp b. W. knowledge c. And intent to further those goals
  2. can require oath to Const and that will oppose overthrow of gov’t
  3. can be disciplined if speech a. Not public concern b. Public concern but disruptive to workplace
  4. when gov’t itself is speaking, can discriminate
• school kids: can be disciplined if disruptive
• prisoners: if rational relation to legitimate penological interest
• press:
  1. broadcast TV and radio more regulated b/c allocated by gov’t → can ban offensive sexual content
  2. cable TV content neutral regulations ok, get intermediate scrutiny

Question 40

Prior restraints on speech

Answer 40

Presumption against.
OK: classified, nat security review
OK: restraining pretrial publicity judge considers 1. Nature of it 2. Availability other means 3. Likely effectivenerss
NOT OK: pretrial gag orders usually b/c other means – voir dire, change venue, postpone
OK: movie licensing if 1. Narrow reasonable standards 2. Speedy review of inj 3. Burden on censor 4. Prompt ruling

Question 41

Overbroad or Vague

Answer 41

 overbreadth: regulations must be narrow and specific, 3rd party standing on behalf of innocents swept up
 vagueness: “contemptuously” and “subversives” too unclear to have “narrow specificity

Question 42

State action

Answer 42

1. public function: private actor performing traditionally public function. YES city streets NO shopping center
2. significant state involvement: private action closely encouraged and supported by gov’t. YES restaurant in gov’t building, org that regulated school sports, NO granting liquor licenses
   OJO 13th Amendment no state action requirement

Question 43

Prez foreign affairs

Answer 43

Power to enter into exec agreements with foreign nations. Superceeds state law, not federal. An executive agreement is invalid if it is in conflict with existing federal law (either the Constitution or a congressional act).

Question 44

Preemption

Answer 44

1. Direct conflict 2. Occupy field: (1) whether the federal scheme is so comprehensive that Congress left no room for the states to enact supplemental laws, and (2) whether there is a need for a uniform regulatory scheme to avoid confusion and difficulty in administration.