Con Law

Question 1

Article 10 specifically prohibits states from (8):

Answer 1

(1) making treaties with other nations;
(2) coining money;
(3) passing a bill of attainder;
(4) enacting an ex post facto law;
(5) impairing the obligation of contracts;
(6) laying any duty on imports or exports, except where necessary for executing its inspection laws;
(7) engaging in war; or
(8) maintaining a peacetime army.

Question 2

What is the anti-commandeering doctrine (Tenth Amendment)?

Answer 2

The federal government is prohibited from using an enumerated power to force a state legislature to pass a law or a state executive official to administer a federal program.

Question 3

The Thirteenth Amendment prohibits:

Answer 3

slavery and involuntary servitude.

Question 4

a case will not be dismissed for mootness if the injury is…

Answer 4

capable of repetition, yet evading review (CORYER)

Question 5

Through specific incorporation, the 14th Amd applies to the states:

Answer 5

(1) the First Amendment freedom of speech and freedom of press, the right to assemble and petition the government for a redress of grievances, the right to free exercise of religion, and the prohibition against the establishment of religion;
(2) the Fourth Amendment provisions guaranteeing the right to be free from unreasonable searches and seizures;
(3) the Fifth Amendment protection against double jeopardy, privilege against self-incrimination, and requirement of just compensation when private property is taken for public use;
(4) the Sixth Amendment rights guaranteeing the accused in criminal prosecutions a speedy and public trial, the right to confront and cross-examine witnesses, the right to counsel, and the right to a jury trial in criminal cases;
(5) the Eighth Amendment prohibition against cruel and unusual punishments; and
(6) the Second Amendment right to keep and bear arms.

Question 6

Define the abstention doctrine.

Answer 6

The federal court may abstain or refuse to hear a particular case when there are undecided issues of state law presented. The abstention doctrine permits the state court to resolve issues of state law, thereby making a decision on the constitutional issue unnecessary.

Question 7

Define the adequate and independent state grounds doctrine.

Answer 7

Although a state court decision may involve a federal question, if the state court judgment can be supported on an adequate and independent state ground, the Supreme Court will not take jurisdiction.

Question 8

Explain the “procedural” component to adequate state grounds.

Answer 8

If the plaintiff loses in state court for failing to comply with some state procedural rule and the Supreme Court finds the state procedural rule to be “adequate” (fundamentally fair under due process analysis), then the doctrine of adequate state grounds will also apply to foreclose Supreme Court review.

Question 9

Unlike other doctrines of judicial review, which apply to the entire federal judiciary, adequate state grounds apply only to:

Answer 9

The Supreme Court

Question 10

The only two justifications for affirmative action that have been upheld are:

Answer 10

(1) remedying the effects of past or present discrimination in a particular institution; and
(2) achieving a diverse student body in an institute of higher education.

Question 11

Affirmative action based on gender need only pass which level(s) of scrutiny?

Answer 11

Intermediate scrutiny.

Question 12

Article II, Section 2 gives the President the power, “with the Advice and Consent of the Senate,” to nominate and appoint:

Answer 12

all “Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for”.

Question 13

The President has the exclusive power to nominate high-level officials such as cabinet members, but when the President does so, the Senate has the power to:

Answer 13

confirm or reject those nominees.

Question 14

Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to:

Answer 14

impound the authorization of such funds.

Question 15

A bill of attainder is:

Answer 15

(1) a legislative act;
(2) that inflicts punishment;
(3) without a judicial trial;
(4) upon named individuals or an easily ascertainable group;
(5) for past conduct.

Question 16

Article I, Section 9, clause 3 and Article I, Section 10, clause 1 prevent both federal and state legislatures from:

Answer 16

passing bills of attainder(?)

Question 17

Article III, Section 2 limits the jurisdiction of federal courts to “cases” and “controversies.” A case or controversy is a:

Answer 17

real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of a conclusive character.

Question 18

A declaratory judgment is:

Answer 18

a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief.

Question 19

Which are the Civil War Amendments and what does each provide?

Answer 19

(1) The Thirteenth Amendment bans slavery.
(2) The Fourteenth Amendment prohibits the states from violating due process, equal protection, and privileges and immunities.
(3) The Fifteenth Amendment prohibits the states from discriminating in voting rights.

Question 20

To validly enforce the Fouteenth or Fifteenth Amendment, Congress must show that:

Answer 20

(1) state governments have engaged in widespread violations of the Amendment; and
(2) the legislative remedy is “congruent with and proportional to” the violations.

Question 21

List the three ways that Congress can regulate commerce:

Answer 21

(1) channels of interstate commerce (i.e., highways, waterways, and air traffic);
(2) instrumentalities of interstate commerce (cars, trucks, ships, airplanes); and
(3) activities that “substantially affect” interstate commerce.

Question 22

The Fourteenth Amendment provides:

Answer 22

that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

Question 23

What is the dormant Commerce Clause?

Answer 23

Where Congress has not enacted legislation, the states are free to regulate local transactions affecting interstate commerce subject to certain limitations.

Question 24

Test/burden for strict scrutiny

Answer 24

(1) the regulation serves a compelling state interest; and

(2) the regulation is narrowly tailored to serve that interest.

Question 25

If a state law merely incidentally burdens interstate commerce, what must the state show to have the law upheld?

Answer 25

The law will be upheld unless the burden imposed on interstate commerce clearly outweighs the local benefits. The state must show:

(1) the regulation furthers a legitimate state end;
(2) the law is rationally related to that legitimate state; and
(3) the burden on interstate commerce is outweighed by the state interest in enforcement.

Question 26

List the two exceptions to the dormant Commerce Clause:

Answer 26

(1) Congress may affirmatively authorize states to legislate in areas that would violate the dormant Commerce Clause; and
(2) when states act as market participants, they may discriminate between in-state and out-of-state businesses.

Question 27

When a government program prefers one religion, or one religious sect, over others it will be reviewed under which level(s) of scrutiny?

Answer 27

Strict scrutiny.

Question 28

Where the legislation or government program contains no religious or sect preference, the Supreme Court will follow the three-part Lemon test:

Answer 28

(1) the statute must have a secular legislative purpose;
(2) the principal or primary effect or purpose must neither advance nor inhibit religion; and
(3) the statute must not foster an excessive government entanglement with religion.

Question 29

As a general rule, religious activities conducted in public schools violate the Establishment Clause because:

Answer 29

their primary purpose is to promote religion

Question 30

A statute retroactively alters the criminal law and violates an ex post facto clause if it:

Answer 30

(1) makes criminal an act that was not a crime when committed;
(2) prescribes greater punishment for a crime after its commission;
(3) decreases the amount of evidence required for conviction; or
(4) extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Question 31

Describe the President’s power to enter into executive agreements and note whether these agreements prevail over federal or inconsistent state law.

Answer 31

(1) The President has the power to enter into executive agreements and compacts with foreign nations. Such agreements are valid and prevail over inconsistent state law.
(2) Executive agreements are the sole responsibility of the President, and need not be ratified by Congress.
(3) Executive agreements do not prevail over federal statutes.

Question 32

List the hierarchy of laws.

Answer 32

(1) U.S. Constitution.
(2) Treaties and federal statutes.
(3) Executive orders and agreements.
(4) State constitutions.
(5) State laws and ordinances.

Question 33

The President has an absolute privilege to refuse to disclose:

Answer 33

information relating to military, diplomatic or sensitive national security secrets. Other confidential communications between the President and his advisors are presumptively privileged.

Question 34

The government may not punish an individual for their religious beliefs by:

Answer 34

denying benefits or imposing burdens based on religious belief.

Question 35

Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if:

Answer 35

the regulation is neutral in respect to religion and is of general applicability.

Question 36

Where the government purposely interferes with particular conduct because it is dictated by religious beliefs, strict scrutiny analysis will be applied and the law will be held unconstitutional unless:

Answer 36

it can be justified through proof of a compelling state interest served by narrowly tailored means.

Question 37

The First Amendment provides:

Answer 37

“Congress shall make no law…Abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Question 38

Regarding freedom of expression, the government may neither:

Answer 38

(1) censor all categories of speech; nor
(2) engage in content-based discrimination among different categories of speech (even if that speech is offensive), with some exceptions.

Question 39

The regulation of speech is allowable if:

Answer 39

it passes strict scrutiny

Question 40

A law which regulates conduct, creating an incidental burden on speech, is allowable if:

Answer 40

(1) the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; and
(2) the incidental restriction on speech is no greater than is essential to the furtherance of that interest.

Question 41

Where the speaker is the government, not a private actor, the government may discriminate based on:

Answer 41

the content of the speech.

Question 42

Unprotected speech that may be regulated includes:

Answer 42

(1) speech that advocates violence or unlawful action, fighting words, and hostile audience speech;
(2) obscene speech; and
(3) defamatory speech.

Question 43

What are the constitutional restrictions on the regulation of defamatory speech for a public official/figure or a private person?

Answer 43

Constitutional restrictions apply to the regulation of defamatory speech where the plaintiff is either a public official or public figure, or where the defamatory statement involves a matter of public concern.

When the plaintiff is a private person and the subject of the statement is a matter of public concern, the plaintiff need not prove actual malice but must prove negligence about the truth or falsity of the statement.

When the plaintiff is a public official or public figure, the plaintiff must prove the state law requirements of defamation, plus “actual malice,” defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement. This rule holds whether the allegedly defamatory statement is a matter of public or private concern.

Question 44

Commercial speech is protected by the First Amendment if it:

Answer 44

(1) is not false or deceptive; and
(2) does not relate to unlawful activity.

If commercial speech satisfies these requirements, government regulation of the speech must:

(1) serve a substantial governmental interest;
(2) directly advance the substantial governmental interest; and
(3) not be more extensive than is necessary to serve that interest.

Question 45

The government may place reasonable restraints on the time, place, and manner of speech in public areas, but the regulation must be:

Answer 45

(1) content-neutral, as to both subject matter and viewpoint;
(2) narrowly tailored to serve a significant (important) government interest; and
(3) leave alternative channels of communication open.

Question 46

Speech-related activities at non-public forums requires a government regulation must be:

Answer 46

viewpoint-neutral and reasonably related to a legitimate interest.

Question 47

While they cannot impose a tax on the federal government, who may states collect a nondiscriminatory tax from?

Answer 47

Persons who deal, or contract, with the federal government.

Question 48

When does the Supremacy Clause impliedly prevent the states from regulating the activities of the federal government?

Answer 48

When the regulation will interfere with the government’s ability to carry out its federal functions.

Question 49

Federal lands are subject to the authority of the federal government, with the exception of:

Answer 49

the extent that Congress has ceded jurisdiction to the state.

Question 50

When the federal government or one of its agencies (or instrumentalities) sues a state without its consent, the Supreme Court has what type of jurisdiction?

Answer 50

Original, but not exclusive, jurisdiction.