Con Law

Question 1

Do you have Standing as a Taxpayer?

Answer 1

Usually not, unless you’re addressing specific government expenditures under the Taxing and Spending clause related to the Establishment Clause (e.g., can challenge federal program that allows free textbook distributions to students in all schools as long as there’s no religious instruction)

Question 2

What types of decisions can SCOTUS review?

Answer 2

1. Final decision of the highest state court**
2. Any final decision by a federal court
3. Any decision if Congress establishes Appellate Jurisdiction over that matter

** State court’s decision has to turn on federal law though, not on state law alone.

Question 3

Private parties can’t sue state government under the 11th Amendment. Who can still sue the state?

Answer 3

1. Federal government can sue the state
2. Private parties can sue state officials for personal damages
3. Bankruptcy proceedings
4. Private parties can sue the state for 14th Amendment Due Process violations
5. Private parties can still sue cities and local government

Question 4

Does Congress have a general Police Power? No, but M.I.L.D.

Answer 4

Nope, but they can exercise police power over Military, Indian Reservations, Land, & District of Colombia

Question 5

Congress’ Property Power

Answer 5

Congress has the power to dispose of and make necessary regulations respecting the territory or other property belonging to the United States (e.g., can protect wildlife on federally-owned lands, which will preempt state law that allows hunting of animals on that land)

Question 6

Speech or Debate Clause

Answer 6

Federal legislators are immune from civil or criminal liability for speech or debate that occurs in the regular course of the legislative process (does NOT cover state legislators & does not seem to apply to republished defamatory statements in a newspaper)

Question 7

What can Congress do with respect to Foreign Policy?

Answer 7

• Declare war
• Regulate commerce with foreign nations
• Authorize military expenditures
• Make all laws that are Necessary & Proper for carrying out enumerated powers (“add-on” that would let them call on President to pursue a certain Foreign Policy)

Question 8

Congress can regulate interstate commerce through:

Answer 8

Channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce

Question 9

Congress can regulate IN-STATE commerce when:

Answer 9

The commercial or economic activity within that state has a substantial effect, in the aggregate on interstate commerce.

If it’s a non-economic activity, Congress can regulate it if it has a direct and substantial economic effect on interstate commerce.

Question 10

Can Congress overturn an Executive Decision?

Answer 10

NO. This is an unconstitutional legislative veto. It can only overturn a law with a subsequent law. Congress cannot veto a decision by the Executive or an agency acting pursuant to a delegated power. Laws must be (1) approved in both Congressional houses & (2) Presented to the President for signature or veto (and no line-item vetoes allowed).

Question 11

How does the President remove people?

Answer 11

He can remove high-level executive officers, but this may be limited by Congress to requiring “good cause.”

Question 12

How does Congress remove executive officers?

Answer 12

Can remove President, Vice President, federal judges, and federal officers through impeachment (need a House of Representatives’ majority vote + 2/3 vote from Senate)

Question 13

When does Federal Law Preempt State Law?

Answer 13

When it:

(1) Explicitly “occupies the field” (i.e., immigration); or
(2) When there’s an ACTUAL CONFLICT with state law and the state law IMPEDES FEDERAL OBJECTIVES

“Actual Conflict” - complying with both federal and state law is impossible

Question 14

Dormant Commerce Clause - state can regulate interstate commerce locally if there’s no federal law on the subject aaaand

Answer 14

In the absence of federal law, state and local laws may regulate local aspects of interstate commerce, but only if the regulation is neither discriminatory against out-of-state residents or unduly burdensome

Does it:
1. Discriminate against out-of-state competition?
2. Unduly burden interstate commerce?
3. Regulate a wholly out-of-state activity?
It’s INVALID.

Question 15

Article IV Privileges & Immunities

STATES STATES STATES STATES STATES STATES

Answer 15

State action here. States can’t discriminate against non-residents for issues involving commercial sales, or livelihood. They can’t require a higher tax for professional licenses for non-residents than for residents. But they are fine to regulate recreational licenses, like hunting licenses, for out-of-state residents.

Question 16

Best constitutional argument against private conduct that discriminates under the 14th Amendment?

Answer 16

Only reaches state action from depriving any person of life, liberty, or property without DP and EQ, but private conduct can still be regulated if:

(1) The government FACILITATES the private actor (e.g., funds them); or
(2) Private actor is performing a TRADITIONAL GOVERNMENT FUNCTION

Question 17

Best constitutional argument against discrimination of wealthy people?

Answer 17

There is no fundamental right to wealth under the 14th Amendment.
And “Wealthy Persons” aren’t a suspect class under EPC.
They’re only going to get RBR review.
I would argue Commerce Clause violation.

Question 18

Levels of Review

Answer 18

1. Rational Basis Review - is the law rationally related to a legitimate government purpose?
2. Intermediate Scrutiny - is the law substantially related to an important government purpose?
3. Strict Scrutiny - is the law necessary for furthering a compelling government interest?

Question 19

Fundamental Rights afforded Strict Scrutiny

Answer 19

1. Race
2. National Origin
3. Alienage (when denied private employment)
4. Right to travel and vote
5. Right to keep families unified (i.e., custody)
6. Right to marriage
7. Right to use contraceptives
8. Right to procreate

Question 20

For Procedural Due Process, when is a PRE-DEPRIVATION HEARING required?

Answer 20

1. When you have a public employee who can only be fired for cause (NOT an “at will” government employee, not a “probationary” government employee)***;
2. If terminating welfare benefits; or
3. If revoking driver’s license

***Is a Post-Deprivation hearing enough? NO.
What if it complies with state law? NO.
Post-hearing will only be given if pre-hearing is highly impracticable.

Question 21

When is a POST-DEPRIVATION hearing required?

Answer 21

1. Terminating disability rights

2. Dismissing students from public school

Question 22

Substantive Due Process v. Equal Protection

Answer 22

DUE PROCESS: extend these laws to everybody

EQUAL PROTECTION: these laws are unfairly targeting certain people

Question 23

Contract Clause

Answer 23

States and local governments cannot enact laws that retroactively impair existing contract rights unless there’s an important, legitimate public interest (private contracts) or it’s necessary for an important public purpose (government contracts). But the federal government totally can interfere with any contract, for any reason.

Question 24

A state can regulate pre-viable abortions, as long as it doesn’t create an Undue Burden on Mom. These are all still constitutional for abortion:

Answer 24

NOT BURDENSOME FOR STATE TO IMPOSE:

1. 24-hour waiting period
2. Judge’s approval
3. Parents’ consent for minors

Question 25

Does the government have to subsidize abortions or provide funding for it to public hospitals?

Answer 25

No.

Question 26

Equal Protection Violation Requirements

Answer 26

1. Does the law discriminate on its face?
2. Is it a facially-neutral law being applied in a discriminatory manner?
3. Is there a Disparate Impact AND a Discriminatory Purpose behind the law? (You need both, not just Disparate Impact)

Question 27

Can the government regulate speech in a PUBLIC FORUM? (sidewalks, parks)

Answer 27

Yes, as long as the regulation is:

(1) Content-neutral: not regulating the content itself, but regulating the time, place, manner of it
(2) Narrowly-tailored to serve an important government interest; and
(3) Leaves other channels of communication open

If it’s content-based, Strict Scrutiny will apply (compelling reason narrowly tailored)

Question 28

Can the government regulate speech in a LIMITED PUBLIC FORM? (public schools open for religious groups to meet at)

Answer 28

Yes, as long as the regulation is:

(1) Content-neutral: not regulating the content itself, but regulating the time, place, manner of it
(2) Narrowly-tailored to serve an important government interest; and
(3) Leaves other channels of communication open

Government law denying a religious group the right to use the space because they will discuss religious topics is a form of “Content-based regulation” that will be examined with Strict Scrutiny.

Question 29

Can the government regulate speech in a NON-PUBLIC FORUM? (military base closed to speech)

Answer 29

Yes, as long as the regulation is:

(1) Viewpoint-neutral: cannot allow speech from one side of the issue and not the other
(2) Rationally related to some legitimate purpose

Question 30

When can the government regulate symbolic speech?

Answer 30

As long as their regulation is:

(1) Unrelated to suppressing that specific symbolic message;
(2) It furthers an important government interest; and
(3) Its no greater than necessary to further that interest

Question 31

When can the government regulate obscenity (appeals to prurient interests, patently offensive, and lacking artistic value)?

Answer 31

1. Zoning - government can regulate lewd speech or conduct through zoning if it’s designed to combat secondary effects (such as crime)
2. Child pornography - always prohibited
3. Profanity but usually only if it’s broadcast over media or in public schools

Question 32

Freedom of Religion

Answer 32

Government cannot punish you for exercising your religion but also doesn’t necessarily have to accommodate your religion (generally-applicable laws will still pertain to you)

*Requiring state to analyze the sincerity of someone’s religious beliefs will violate Free Exercise Clause

Question 33

Establishment Clause

Answer 33

Government cannot advance religion over non-religion or establish one religion over another (e.g., school prayer in a public school, even if totally voluntary, still constitutes an official sponsorship of religion and violates the Establishment Clause).

A law will only not violate the Establishment Clause if it (1) has a secular purpose; (2) not advancing or inhibiting religion; and (3) there’s no excessive entanglement between the government and religion.

Question 34

Is a spray-painted racist threat protected speech under the First Amendment, or can the government regulate it? NOT PROTECTED.

Answer 34

Intimidation and threats are NOT PROTECTED FREE SPEECH, so the government can regulate or prohibit that speech without a compelling reason narrowly tailored, even if the person who made the threat did not actually intend the harm (cross-burning case).

Question 35

Steps of a Government Building is considered a “Public Forum” – so what kind of speech regulation will be allowed there?

Answer 35

Government can regulate speech in a Public Forum so long as THE GOVERNMENT SHOWS (it’s their burden) that the regulation is (1) Content-neutral (not aimed at suppressing the content of the speech, just the TPM); (2) Must further a SIGNIFICANT GOVERNMENT INTEREST by the LEAST RESTRICTIVE MEANS possible; and (3) Leave open other channels of communication.

Question 36

Speech & Debate Clause does not provide immunity to State Legislators, so what’s a State Legislator’s best argument?

Answer 36

That 10th Amendment state sovereignty reserves some state functions outside the scope of Congress’s commerce power. Pretty weak, but that’s what it is.

Question 37

When is there a Free Exercise Clause violation even though there’s a facially neutral law?

Answer 37

Government cannot prohibit certain religious conduct through a targeted law unless that measure is necessary to promote a compelling govt interest. But courts will uphold a facially-neutral law UNLESS it was intended to target the practices of a particular religious group (aimed at suppressing a particular religion). Then the court will apply Strict Scrutiny and will only uphold it if the government can show the action was NECESSARY to achieve a COMPELLING government interest.

• Disparate impact on the religious group is NOT ENOUGH (have to prove that the permit was issued in an attempt to impinge on their specific religion practice)

Question 38

Congress can bribe states, yes? But cannot force states.

Answer 38

Yep, can induce to enact laws through grants of federal money. But they can’t FORCE states to enact certain laws, even through their broad Commerce Clause powers. It’ll run afoul of the Tenth Amendment.

Question 39

Can the Attorney General be forced to prosecute someone by Congress (House of Reps)?

Answer 39

No, because law enforcement is an exclusively executive function so Congress enjoys no law enforcement powers and can’t direct the AG to prosecute anyone. AG can prosecute criminal activity as he sees fit and he can choose not to.

Question 40

Government can’t question someone’s Association to withhold a benefit or a right unless:

Answer 40

State has (1) Legitimate interest in determining character and professional competence; and (2) No other less restrictive means possible

Question 41

When can the government regulate Symbolic Speech?

Answer 41

When: (1) Important government interest; (2) Regulation is unrelated to suppressing that specific message; and (3) Regulation is no greater than necessary to achieve the important government interest.

Question 42

Public employees (working for the government) can still speak out about matters of public concern pursuant to the First Amendment, as long as:

Answer 42

The employee’s actions DO NOT interfere with the functions of government or his job

City building inspector speaking about state of low-income housing show that his attitude interferes with his job enforcing the building code. So firing him would be constitutional.

However, a Clerical Employee’s political views do not affect his job at the city’s water department, so firing him would not be constitutional.

Question 43

Free Exercise Clause violation (targets religion):

Answer 43

Government can’t impose a burden on someone because of that person’s religious belief unless that measure is NECESSARY to promote a COMPELLING GOVERNMENT INTEREST. Requiring the state to analyze the sincerity of someone’s religious beliefs generally violates Free Exercise Clause.

Question 44

Government can regulate commercial speech when:

Answer 44

(1) It’s fraudulent or misleading.

Otherwise, can’t regulate it unless there’s a (2) Substantial Government Interest that is (3) Narrowly-tailored.

Question 45

Congress’s Spending Power

Answer 45

Can impose conditions on a state in order to grant federal funding as long as it is: (1) Expressly stated Condition; (2) Related to the law’s purpose; (3) Not unduly coercive.

Question 46

What kind of government employee gets a pre-deprivation fair hearing before they are fired?

Answer 46

One that is fired only “for cause” requires notice and a pre-deprivation hearing. Post-hearing termination hearing only allowed when a pre-one is highly impracticable (e.g., a public school teacher entitled to employment after 5 years’ good behavior fired for cause after theft is entitled to pre-deprivation hearing).

Question 47

Takings Clause (Physical and Regulatory)

Answer 47

If the government takes any physical part of your land, no matter how small or no matter if it actually interferes with your use of the land, you are entitled to just compensation.

If it’s just a regulatory taking, however, you are only entitled to just compensation when the government’s use of the land deprives you of ALL economic value. If there’s still an economically viable use of the land, it’s not a regulatory taking where you can request lost profits from the government.

Question 48

Article IV Privileges and Immunities Clause protects against discriminatory _______ laws.

Contracts Clause prohibits ________ laws from being passed if they impair the obligations of existing contracts.

Answer 48

Article IV P and I protects against STATE laws only, not federal laws/statutes. It prevents states from discriminating against citizens of other states in ways that adversely affect property rights. If the question involves a federal law, Article IV is not applicable.

Contracts Clause prohibits STATES from passing laws that impair obligations of existing contracts – it is not implicated by a FEDERAL statute.

Question 49

What is Section 5 of the 14th Amendment?

Answer 49

It allows Congress to pass appropriate legislation to enforce the other provisions in the 14th Amendment (like legislation about fair vocational licensing procedures). Such legislation is appropriate if it seeks to remedy 14th Amendment violations created by state or local government, and if the remedy is proportionate to the violation.

Question 50

Tenth Amendment vs. Commerce Clause

Answer 50

Tenth Amendment prohibits the federal government from commandeering the lawmaking power of state or local legislatures. However, this does not occur if a statute applies to all owners of a product (e.g., owners of 100+ cars) and not only state government owners. If so, it’s a generally applicable law within the powers of the Commerce Clause to regulate.

Question 51

Speech or Debate Clause

Answer 51

Shields members of Congress from (1) Civil or criminal suits relating to their legislative actions; and (2) Grand jury investigations relating to those actions. It even shields them from negligent speech made during their legislative actions.

Question 52

When can you sue a federal officer under the 11th Amendment?

Answer 52

1. Can sue for damages in his personal capacity;

2. Sue for Ultra Vires, or for actions done (1) Beyond his statutory powers; or (2) Unconstitutional actions.

Question 53

Commercial Speech

Answer 53

Can be regulated if it is fraudulent or misleading. Otherwise, it cannot be regulated unless there is a (1) Substantial government interest; (2) Narrowly tailored to (3) Advancing that interest.

Question 54

Fundamental Right to Travel

Answer 54

Includes the right to be treated equally with other residents of the state you live in, even if you are a new resident. Strict Scrutiny will apply.

Question 55

Supreme Court can’t hear a state case that rested on:

Answer 55

Adequate and Independent State Grounds – this includes a decision based on an issue from the state’s constitution only, especially if the state constitution offers greater protection than the Federal Constitution.