Con Law

Question 1

Case and Controversy

Answer 1

There must be an actual case or controvery in dispute. No political questions.

Question 2

Standing

Answer 2

• To bring a claim, a person must have standing. Standing requires
  
  • injury,
  • causation, and
  • redressibility.
• Third-party standing
• Organizational standing requires that the
  
  • individual members have standing
  • that the interest asserted are related to the organization’s purpose and
  • that individual members are not required to participate

Question 3

Ripeness

Answer 3

A case eill not be heard if there is not yet a live controversy or immediate threat of harm (future harm)

**discuss when declaratory judgement AND encacted law not yet enforced**

Question 4

Mootness

Answer 4

A case will not be heard of a live controversy exsisted at the time the complaint was filed but has since been eliminated

Question 5

11th Amendment

Answer 5

The Eleventh Amendmen provides immunity to the states from any federal suit against any one of the states by citizens of another state or a foreign state

• cannot sue state
• Bars actions for damages
• Cities and counties OK

Question 6

State Action

Answer 6

• There must be government action for an action to violate the constitution.
• The actions of a private actor can bw state action if
  
  • performs function that are traditionally and exclusively public functions, OR
  • state is heavy entangled

Question 7

State Power: 10th Amendment

Answer 7

Under the 10th Amendment, powers not delegated to the federal government are reserved for the states

Question 8

Federal Powers: Congress

Answer 8

• Can regulate commerce
  
  • interstate
    
    • channels
    • instrumentalities
    • persons and things moving
    • activities with substantial effect on commerce
  • intrastate
    
    • economic
  • rational belief
  • substantial economic effect
  • direct and substancial effect
• Tax and Spending
• War
• Naturalization
• Necessary and propery - if rationally related

Question 9

Federal Powers: Judiciary

Answer 9

• Cases under constitution
• Admiralty/ 2 states / citizens of different states
• not if independent and adequate state grounds

Question 10

Federal Powers: Executive

Answer 10

• Carry out laws
• executive orders
• treaties
• appointments
• foreign affairs
• pardon federal offenses
• Veto bills - but no line items
• Executive privilege qualified: weigh government interest

Question 11

Limitations on State Power: Supremacy/Preemption

Answer 11

Federal laws take priority and preempt over state laws that conflict

Question 12

Limitations on State Power: Dormate Commerce Clause

Answer 12

The Domant Commerce Clause restricts the states ad local governments from regulating activity that affects interstate commerce if the reulation is discriminatory or unduly burdens commerce.

(per se violaion) A regulation that is facially discriminatory against out-of-towners will be permitted only if it is

• necessary to
• important noneconomic government interest
• with no reasonable alternatives

A regulation that unduly burdens interestate commerce will be permitted if it is

• rationally related to a
• legitimate government interest and the
• burden imposed on interestate commerce must be outweighed by the benefits to the state

EXCEPTIONS

• Market participant: when the state is not acting as a regulator, but rather owns or operates a business, it may favor local interest over nonlocal interest.
• Congressional consent to regulation

Question 13

Limitations on State Power: Privileges and Immunities Clause

Answer 13

• State cannot discriminate against noncitizens
• Unless substanctially reated and less discriminatory alternatives
• rights fundamental to national unity
• corporations and aliens are not citizens

Question 14

Limitations on State Power: Contracts Clause

Answer 14

The contracts clause prevents state governments from passing laws that retrocatively and substantially impair existing contracts

• if the state is substantially impairing private contracts, the law must be reasonable and appropriate to serve a significant and legitimate public purpose
• Similar to the test above but the court will interpret it more strictly, focusing on the law being necessary to serve an important public purpose

Question 15

Limitations on Federal Power: 10th Amendment

Answer 15

The tenth amendment reserves all powers not delegated to the federal government to states

Question 16

Limitations on Federal Power: Improper delegation of legislative power

Answer 16

• Congress cannot delegate its legislative authority to make law
• congress can delegate regulatory powers to others branches of the government if there are intelligible principles that govern the exercise of the delegated authority

Question 17

Individual Rights: 1st Amendment - religion

Answer 17

• The Free exercise clause bars any law that prohibits or seriously burdens the free exercise of religion, UNLESS there is a compelling governmental interest
  
  • generally applicable law that advances important public interest are OK
• Establishment Clause prohibits laws respecting the establishment of religion. The government can’t endorse or favor specific religious groups
  
  • incidentally favoring one religion over another in an attempt to benefit a wide variety of people is allowable
  • lemon test
    
    • secular purpose
    • primary secular effect
    • no excessively government entanglement

Question 18

Individual Rights: 1st Amendment - Free Speech

Content based v. content neutral

Answer 18

Content based v. content neutral

Content-based speech regulations must meet strict scrutiny, which requires that the regulation be necessary to achieve a compelling government interest.

Content-neutral regulations require that the regulation serve a significant/important governement interest, that is narrowly tailored, and that it leaves open alternative channels of communication.

Question 19

Individual Rights: Freedom of Association

Answer 19

First Am

Question 20

Individual Rights: Freedom of Association

Question 21

Individual Rights: Substantive Due Process

Answer 21

Substantive due process limits the governement’s ability to regulate certain areas of human life, such as the substantive interest in life, liberty, and property.

• fundamental right - strict scrutiny
• no fundamental right - rational basis

Question 22

Individual Rights: Procedural Due Process

Answer 22

Procedural Due Process requires the government to use fair process before intentionally deprive a person of life, libery, or property.

• judicial: hearing, counsel, call witnessses, trial, appeal
• nonjudicial: balance private interest, procedural safeguards, and government interest

Question 23

Individual Rights: Equal Protection Clause

Answer 23

The Equal Protection Cluase prohibits the government from treating similarly situated people from being trated differently under the law on its face or as applied.

• Levels of Scrutiny
  
  • Strict Scrutiny
    
    • necessary to compelling gov interest
  • Intermediate Scrutiny
    
    • Substantially related to an important governmental interest
  • Rational Basis
    
    • rationally related to legitimate government interest
• Classifications
  
  • Suspect
  • Quasi-suspect
  • Nonsuspect

Question 24

Takings Clause

Answer 24

• The government can not take private property
• for public use (rationally related OK)
• without just compensation (market value)
• Considered a total taking if
  
  • permanent physical invasion (per se taking)
  • use restriction no economic value left
• Temporary taking court considers
  
  • economic impact
  • reasonable expectation of owner
  • length of delay
  • good faith
• Regulatory taking court considers
  
  • character of invasion
  • economic impact
  • interference with invest backed expectation

Question 25

Individual Rights: 1st Amendment - Free Speech Limitations on Free Speech Vagueness Overbroad Unfettered Discretion Prior Restraints

Answer 25

* A regulation is **Vague** if it is so unclearly defined that a reasonable person would have to guess at its meaning. * A regulation is **Overbroad** if it bans both protected speech and unprotected speech. * A regulation, licensing scheme, or permit regulation is unconstititutional if it leaves **Unfettered Discretion** to the decisionmaker by not setting forth narrow and specific grounds for deny a permit or where the permit mechanism is not closely tailored to the regulation's objective. Further, the regulation must be a reasonable means of maintaining public order * **​Prior Restraints** prevent speech from being heard before it even occurs. These are rarely allowed and carry a heavy presumption of unconstitutionality. A prior restraint is only allowed where the government can show that some irreparable or serious harm to the public will occur and then there must be narrowly drawn standards and a final determination of the valifity of the restraint.

Question 26

Individual Rights: Speech - Time, Place, Manner Commercial Speech Symbolic Speech Limitations on Free Speech

Answer 26

* **Time, Place, Manner** * Public/designated public * content nuetral and viewpoint neutral * significant governmental interest * narrowly tailored * open alternative channels * Limited public/nonpublic * viewpoint neutral * legitamate governmental interest * reasonably related * The government may restrict **Commercial Speech** only if the regulation * serves a **substantial government interest** * **directly advances** that interest AND * **narrowly tailored** to a **reasonable fit** * **Symbolic Speech** is the freedom not to speak or the freedom to communicate an idea by use of a symbol or communicatice conduct, the government may restrict symbolic speech if the regulation * is within the **constitutional power** of the government to enact * furthers an **important governmental interest** unrelated to the supression of speech and * **prohibits no more speech** than necessary *