Con Law ❤️

Question 1

Can a Congress member challenge law giving President power to exercise line item veto?

Answer 1

NO! Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto, reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress.

Question 2

If question says “best argument” and standing can be a possible issue

Answer 2

If question says “best argument,” choose standing first, then Congress’s power etc.

Question 3

When can a taxpayer have standing to challenge taxing and spending power of Congress?

Answer 3

when

> spending is under Congress’s taxing and spending power, AND

> exceeds some specific limitation on that power, in particular the Establishment Clause (Congress cannot establish religion). Ex: providing food to religious school can cause entanglement issues with religious institutions and be un-C under Establishment clause.

Question 4

To have federal court standing, person must show

Answer 4

• clear, specific stake in the outcome of litigation
  > injury (economic better) - cannot be theoretical
• Causation
• Redressability
• no third party usually
• no generalized grievances

Question 5

protecting local businesses v. legitimate state purpose that may look like protecting local business

Answer 5

careful: protecting local businesses v. legitimate state purpose (like protecting lobster population)

Question 6

Does having a bias judge violate due process?

Answer 6

YES, Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge). If a judge has an interest in a case that causes a severe risk of bias, or actual bias, the procedure is not fair and the Due Process Clause is violated.

Question 7

Can a law affecting general population violate procedural due process?

Answer 7

NO, It is only a particular deprivation of an individual’s life, liberty, or property that triggers procedural due process concerns. An action that affects the population in a general manner does not trigger such a concern, even if an individual happens to be burdened as a result of the action.

Question 8

Does an at will employee have a right to procedural due process?

Answer 8

No, no entitlement - expectaction to receive benefit.

Question 9

Is defamation deprivation of liberty for Due Process Clause? 😒

Answer 9

NO, unless there is severe tangible loss

Damage to one’s reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law. Therefore, it generally does not constitute a deprivation of liberty.

(However, it can, if the damage is so severe that employment or associational opportunities are lost.)

Question 10

What do the courts consider to determine what kind of procedural due process to apply?

Answer 10

Discuss multiple factors:

• Importance of the individual interest in question
• how helpful would more process be in fact-finding to achieve a fair solution.
• state interest

Question 11

Does due process require a notice/hearing to revoke a business license?

Answer 11

Yes! A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property.

Question 12

what due process is a “for cause employee entitled to?

Answer 12

Generally must be given

> notice of the charges and a

> pretermination opportunity to respond to those charges

Gov. can fire first if has a substantial reason, and hold a hearing later.

Question 13

Can a property interest in a public job be created without express “must fire for cause” provisions?

Answer 13

Yes if:

> there is a clear practice or

> mutual understanding that an employee can be terminated only for “cause.”

Question 14

What is enough to create suspect class? ( that would qualify for intermediate/strict scrutiny?)

Answer 14

• Discriminatory intent
• Discriminatory application (law to not have laundry in wooden building without permission, and only grant permissions to white people)
• Facial discrimination.

Note: discriminatory effect is not enough.

Question 15

State v. Federal laws discriminating against alienage

Answer 15

State law => Strict Scrutiny because alienage is a suspect class

Federal => Rational Basis Review because Congress is given special right to deal with immigration stuff

Note: also RBR if relates to stuff that directly affect the self-governing process (vote, teacher, probation officer,) 👮‍♀️

Question 16

Is discrimination against undocumented alien subject to SS?

Answer 16

No, SC has not said so => RBR?

Note: undocumented student INTERMEDIATE SCRUTINY if challenges student loan eligibility.

Question 17

Commercial Speech Regulation test

Answer 17

• Does the speech concern lawful activity?
• Substantial gov. interest
• Means chosen directly advance that interest
• Narrowly tailored (DOES NOT have to be the least restrictive means)

Question 18

Can Congress appoint executive commission members?

Answer 18

No, Congress cannot appoint its members/agent to carry administrative/enforcement duties. Such enforcement commission MUST BE APPOINTED BY THE PRESIDENT, because enforcement is executive power only - Congress cannot interfere or give itself such powers. 👍🏼

Question 19

Can Congress impose taxes on people who have no relation to the purpose of taxation?

Answer 19

Yes, Congress has a huge discretion to choose subjects to its taxation.

Question 20

Can disproportionally high taxation be considered taking?

Answer 20

No taxes almost never amount to taking.

Note: taking because of restrictive regulation happens only is when P is basically deprived of all economic benefit of his property

Question 21

Dormant CC elements

Answer 21

If state law affects interstate commerce, must balance (think RBR)

1) legitimate state interest
2) rationally related to state interest
3) state interest outweighs the burden

if discriminates against out of state: must show (think intermediate)

1) Necessary to achieve
2) important, non-economic interest (cannot support its own businesses)
3) no reasonable alternatives are available

exceptions: 1) Congress approved it, 2) state market participant exception

Question 22

What does 14th Am. Immunities and Privileges Clause protect?

Answer 22

ONLY rights that come from national citizenship

> think right to travel

Question 23

Can a state tax non-residents differently?

Answer 23

No, The negative implications of the Commerce Clause (or “the Dormant Commerce Clause”) prohibit taxes that discriminate against nonresidents.

Question 24

Does a regulation have to be the least restrictive means to pass Fourth Am. P&I clause?

Answer 24

Yes, gov. must show that less restrictive means are not available.

Question 25

What does the right to travel include? (14th Amendment)

Answer 25

—-> the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest.

Note if question says someone “moved to the state” => he is a resident (4th A. P&I will not apply to him, so check 14th Am.) 😉

Question 26

Fourth Am. P&I Clause elements

Answer 26

State law violates 4th Am. P&I Clause if:

• discrimination against non-residents
• affects fundamental right (livelihood)
• not substantially related to important gov. interest
• there are no less restrictive alternatives

Question 27

Is requiring 1 year residency to qualify for state healthcare constitutional?

Answer 27

No, this is restricting right to travel under P&I of 14th Am. ==> discriminating b/w state resident based on how long they lived there is restricting fundamental right to travel under 14th Am.

Careful: if move to state, is a resident from day 1 - do not confuse with discriminating again non-residents (protected under 4th Am.). Residency requirement is discriminating b/w. state residents. 😝

Question 28

what speech in not protected under First Am.?

Answer 28

• Fighting words
  > inherently likely to incite immediate retaliation
  > usually struck for overbroad
  > true threat to put a group in fear of bodily harm
• Obscenity
  > Cannot just be offensive
  > Ok to zone to specific area if
  = substantial government interest and
  = do not entirely prohibit the activity
• Speech creating a clear and present danger of imminent lawless action
  > must be directed to produce or incite such action
  > is likely to produce such action
• True Threat - speech meant to communicate an intent to place a person in fear of bodily harm.

Question 29

When can gov. limit right to speech in public forum because of unruly audience?

(i.e. police making protestors stop speech)

Answer 29

ONLY when there is a serious and imminent threat to the public order.

Gov. can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd.

Question 30

Is the building of court public forum?

Answer 30

NO, at most can be a limited public forum.

Note gov. buildings usually not public forum

Question 31

Are high school class related journals public forum?

Answer 31

Supreme Court has held that curriculum-based public high school activities are not public forums.

Question 32

Can a court assess sincerity of a person’s religious beliefs?

Answer 32

A court MAY assess the sincerity of a person’s religious beliefs when relevant to a particular case.

Although the Free Exercise Clause protects the freedom of belief, perhaps absolutely, a court may assess whether a person who says he acted based upon religious beliefs actually held the beliefs claimed.

For example, if a person says that he performed an act because “God told him to,” a court may assess whether the person really believes that “God told him to” so act.

NOTE: under Free Exercise Clause, court cannot determine whether religious views are true, only check in sincere.

Question 33

Can swearing on a Bible be a prerequisite for public office?

Answer 33

Particular religious beliefs cannot be made prerequisites to testifying in court or holding public office.

Question 34

do general applicability laws have to have exception for religion?

Answer 34

NO, except for 2 cases:

=> the Amish must be exempted from mandatory schooling beyond eighth grade, and

=> workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.

Question 35

Test for gov. action challenged under Establishment Clause when no religion is preferred.

Answer 35

Lemon Test:

1. The action has a secular purpose,
2. The action has a primary effect that neither advances nor inhibits religion, and
3. The action does not produce excessive government entanglement with religion.

Question 36

Free Exercise Clause

Answer 36

Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs.

When a person claims that she is being punished for her religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs

Not: First Amendment forbids a court from determining whether a person’s religious beliefs are true.

Question 37

Partial (Decreasing Economic Value) Taking Test

Answer 37

Balancing test

• public interest involved
• extent of the diminution of value
• owner’s reasonable expectation of economic use (must be very specific and investment-backed)

Question 38

Organizational standing elements

Answer 38

• injury in fact to members that given them right to sue on their own behalf
• injury related to organization’s purpose
• individual member participation not required

Question 39

One person one vote principle

Answer 39

Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required. (double digit not ok)

Regarding state government districts, almost exact mathematical equality between districts is NOT required under the one person, one vote principle. (double digit ok, but not unreasonable)

In state government districts, the variance from district to district may not be unjustifiably large. But this is a much more lenient standard than the almost exact mathematical equality standard.

Question 40

When is a state residency requirement ok?

Answer 40

=> not based on a suspect classification and

=> does not limit the exercise of a fundamental right,

• Do the rational basis test
  ex: ok to require bona fide state residency for public education.

Question 41

Can gov. chose not to pay/subsidize abortion pills, etc??

Answer 41

Sure, privacy right to abortion does not include the right to have the state pay for our pills/abortion etc.

Neither federal nor state government is required to grant medical benefit payments for abortions, even if it grants benefits for childbirth services. The Court has held that a state’s failure to provide funding for a woman’s abortion decision does not constitute interference with her constitutional right to make that decision.

Question 42

Is a law limiting voting rights to residents constitutional?

Answer 42

Yes!

=> even though voting is a fundamental tight and is reviewed under SS,

=> exception re residency.

Question 43

Contracts Clause

Answer 43

BETWEEN PRIVATE PARTIES

States cannot pass law imparting obligation of Ks.

applies ONLY to substantial interference. 3 part test:

1) does the law substantially impair a party’s rights under existing K?
2) served important and legitimate public interest
3) reasonable and narrowly tailored way of protecting that interest.

BETWEEN PRIVATE AND GOVERNMENT K
- higher burden - not clear intermediate or strict. Cuz do not want to let gov. legislate and create better conditions for state.

• detrimental reliance is not required

Question 44

What scrutiny is applied to restrictions to get your name/law on the ballot?

Answer 44

SS

but note: limiting the ballot to candidates that have a strong public support is a compelling gov. interest. (can pass SS if narrowly tailored too).

Question 45

Can state enact policies encouraging women to chose childbirth over abortion?

Answer 45

YES, as long statute is reasonably related to purpose.

States can refuse to pay for abortion, refuse to allow abortion in state facilities, refuse to allow state employees to perform abortion, or otherwise restrict stuff

AS LONG AS not undue burden, which means the law has the PURPOSE or EFFECT of placing substantial obstacle on the path of women seeking pre-viability abortion.

Roe v. Wade => constitutional right to pre-viability abortion

Casey => state right to protect the baby - gives states wide power to regulate abortion if reasonably related to the purpose of encouraging childbirth or protecting potential life of baby UNLESS undue burden.

Question 46

Is a State Supreme Court decision based on state Constitution reviewable by the US Supreme Court?

Answer 46

No, SC can’t review is there is independent state law bases.

Question 47

Can the president freely act (create commission, etc.) in area where Congress is silent?

Answer 47

Yes, as long as the acts do not take over the powers of another branch or prevent it from carrying its tasks

Note: president’s internal power is unclear, but ok to act unless congress already acted or uses moneys that congress gave him for other reasons.

Basically can do anything if not prohibited and used the right money) 💰

Question 48

What is Plenary Power v. Inherent State Power?

Answer 48

Inherent state powers
> US Constitution gives states the policing power re health, safety, general welfare etc.
> states can act unless there is a specific US Constitution limitation.

Congress Plenary power
> Congress shares this policing power through Taxing and Spending Powers that promotes general welfare of citizens.

• Note: Congress can share/delegate this power with president cuz it is supposed to execute Congress’s regulations.

Question 49

Can feds give money to teachers as long as they teach non-religious classes.

Answer 49

No, violates the Establishment Clause cuz excessive entanglement - gov would have to constantly go monitor who is teaching what in the religious school.

Question 50

can a district court issue advisory operations?

Answer 50

NO,

• need 2 parties with real stake in controversy
• suffered injury, causation, and
• redressibility

tip: look for stuff where agency is free to not follow court opinion.

Question 51

Burden on Foreign Commerce

Answer 51

treat the same as interstate commerce

> Congress has the exclusive power to pass statutes re foreign commerce.

> Dormant CC- states cannot burden Congress’s commerce powers.

Question 52

What’s Supreme Court’s original jurisdiction?

Answer 52

re ambassadors, ministers, counsels, and cases where a state is a party.

note: Congress can regulate/limit Supreme Court’s appellate jurisdiction, BUT cannot regulate/extend original jurisdiction

Question 53

Can a state/local gov. pass a law restricting interstate commerce that is authorized by a federal law?

Answer 53

Yes, if Congress has passed a law allowing certain burdens, states can pass stuff within it. => ok under the Dormant Commerce Clause

Question 54

Intelligible principle of Congressional delegation of power to executive branch.

Answer 54

Congress can delegate authority to any agency/authority in executive branch, but must give SPECIFIC enough instructions.

Question 55

Voting rights!

Answer 55

15th Amendment - prohibits the state and federal gov. to prohibit access to voting on the bases of race.

Enabling Clause allows Congress to pass laws to protect voting from discrimination.

Question 56

Injury for standing purposes means

Answer 56

• particular/personal to P
• in fact - actually occurred.

cannot say that it hurt everyone in general because unconstitutional laws are bad.

Question 57

Can Congress regulate for general welfare?

Answer 57

NO,

Congress can tax and spend for general welfare, but cannot directly regulate it.

Congress’s regulation for the general welfare must be justified as a means of carrying other power given to Congress - commerce power, taxation, etc.

Question 58

The Property Clause | IV Amendment, Section 3, Clause 2

Answer 58

Gives Congress power to regulate deferral territory and property.

Question 59

Out-of state discriminatory statute burdening interstate commerce ok if …

Answer 59

Necessary to meet a legitimate state goal.

Question 60

Wen does a protestor violate a statute banning public threats of harm.

Answer 60

Note: gov. can ban public threats of harm, cuz inciting violence is not protected speech.

Not to violate the statute: D must

• advocate must make public threat of imminent lawless action.
• likely to actually produce such action. (laughing, joking is not enough, look at the context)

Question 61

When can Congress regulate intrastate sales?

Answer 61

when the aggregate would affect interstate commerce.

Question 62

Is Congress’s taxing and spending power unlimited?

Answer 62

No, limited by individual rights.

Question 63

Does Congress have police powers?

Answer 63

Not generally.

this answer choice that police acted within its police powers to pass a law is always wring, unless refers to

• DC
• US Territory
• military

Question 64

Is operating under a state license or resigning some state grants state action?

Answer 64

NO, it does not rise to state action

• must be more intermingling, such as running a whole town.

Question 65

When apply strict scrutiny for Equal Protection?

Answer 65

• Race
• National origin
• Alienage
• Religion

Question 66

Can a person challenge a proposed law?

Answer 66

NO, be careful - if says proposed a law and want to restrain enactment => no controversy, so standing.

Question 67

What is abstention?

Answer 67

State law is not clear, federal court will obtain from deciding a challenge until state courts have interpreted it.

Question 68

Must P have an individual standing to bring a claim on behalf of third parties?

Answer 68

YES!

Question 69

What are presented’s inherent powers as the Commander in Chief?

Answer 69

he can move military for humanitarian as well as warlike purposes => pretty broad power, which get cut at one point by the requirement of Congress to declare war.

President can move troops unilaterally.

Question 70

what type of review do we apply to Congress’s choice to spend money

Answer 70

spending power is very broad - only has to pass RBR
low bar - just need to connect to promoting general welfare

Note: Spending power is different bases for legislating than commerce power (do not have to have both)

also note: congress can use spending power to impact foreign policy (like holding money from states it does not like)

Question 71

state power over federal government

Answer 71

State police power cannot impose any burden on federal government.

+ cannot tax/take money from federal treasury
+ cannot use federal property without permission, etc.

Question 72

Does the Contracts Clause apply to federal laws?

Answer 72

NO, only to state and local laws.

Question 73

Is President’s constitutional power to conduct foreign affairs plenary?

Answer 73

No it is limited by Congress’s power to regulate interstate commerce.

Congress can ban the trade to other countries, President cannot get around it.

But Congress can authorize/delegate power to do foreign trade to President.

Question 74

10th Amendment

Answer 74

federal gov. cannot make state officials to work for them.

under supremacy cause - federal regulations preempt state stuff, but cannot go too far, like tell the state of pass law or their officials to do something because that would violate the 10th Am.

Question 75

What is the market participant exception to Dormant Commerce Clause?

Answer 75

state can discriminate against other states if is acting like a market participant -when state is itself buyer or seller in of a certain applicable thing.

Question 76

Dormant Commerce Clause exceptions

Answer 76

if:

• Congress has approved discrimination
• or market participant is met,

pick this answer first and DO NOT CHECK for the test:
=> necessary to meet important gov. interest.

Question 77

narrowly tailored

Answer 77

= least restrictive means necessary

Question 78

Is there a limit to what kind of questions Congress can ask at hearing?

Answer 78

Yes, it must be stuff related to what congress has authority to legislate.

• note: Congress can question and even impeach executive branch people.
• also, there is no difference in what Senate or House can ask

Question 79

Can a citizen sue President re his foreign policy decision if she has standing?

Answer 79

NO, barred by political question doctrine.

Constitution vests exclusive powers in Congress to deal with foreign policy.

Question 80

What factors court considers for ripeness?

Answer 80

• fitness of the issues for judicial decision

- hardship to parties of we wait until there is a violation

Question 81

Can a state limit contribution limits to support ballot initiatives?

Answer 81

No, CANNOT limit the contributions to a political committee that supports or opposes a ballot referendum, because such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association.

vs.

can put limits on individual campaign candidates because compelling interest to prevent corruption, etc.

Question 82

What does due process clause require?

Answer 82

Laws involving the deprivation of life, liberty, or property of an individual MUST provide for a process/hearing.

must be a case where life, liberty, or property is denied to an individual on judicial bases (based on each case).

If there is a legislative action to take away right from everyone without case-by-case bases, DP is ok as long as the law was lawfully adopted.

Question 83

What is the test for campaign contribution restrictions, etc. ?

Answer 83

Intermediate scrutiny => narrowly tailored to important interest

• referendum/ballot measure support restrictions are not enough to pass the test.

Question 84

First amendment Lemon Test v. discriminating among religions.

Answer 84

Lemon test - no establishment Clause problem.

Discrimination => need compelling government purpose.

Question 85

Discriminating among religions, what does it violate?

Answer 85

First Amendment, Equal Protection?

Question 86

what kind of residency requirements for voting are constitutional/un-c?

Answer 86

=> Relatively short residency requirements (e.g., 30 days) ok

=> longer (1-year) unconstitutional.

Violation of right to vote and 14th amenndment right to travel.

The residency requirement also impinges on the fundamental right to travel in the same manner (i.e., it discourages people from migrating by denying them the right to vote without a compelling reason).

Question 87

What can you make employees to take an oath for?

Answer 87

• upheld oaths requiring government employees to oppose the violent overthrow of the government and
• to support the Constitution

CANNOT make them take oath re
- repenting flag (may be against religion)

Question 88

when does SC have a jurisdiction over a case where state is a party?

Answer 88

YES => if state is acting to represent its interest as a state, (protect its economic interest), not when state is representing its citizens.

> state is attempting to defend its asserted right to render decisions affecting admissions policies relative to its own state universities.

> describes an attempt by the federal government to prevent state construction of a bridge (presumably pursuant to the admiralty power). Clearly, this case involves an alleged grievance that will be directly committed by a state. Therefore, the state is an actual party.

NO J => the state is attempting to act in parens patriae (i.e., to act as a representative of its citizens, thereby asserting their interests).

Question 89

when is “one person, one vote” not applicable?

Answer 89

The principle of one person, one vote generally is inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes).

*everyone elects everyone, rather than every district sending one person.

Question 90

when/how can overcome prior restraint?

Answer 90

the prior restraint would be justified if the government proves that it was narrowly tailored to achieve a compelling interest.

basically - show an overriding interest,

NOTE: pick the overriding interest answer when it is na option answer with prior restraint, because prior restraint can be overcome with it.

Question 91

prohibiting clergy from serving in politics

Answer 91

Violates establishment clause - would not pass Lemon test because it inhibits religion.

Question 92

what’s the standard of review for Spending Taxing power

Answer 92

> RBR

Question 93

Congress is spending for general welfare.

Answer 93

right answer if coupled with taxing and spending power

Question 94

Exception to the rule that state can discriminate against out-of-states if it is a market participant

Answer 94

when Congress has said cannot do that.

Question 95

if there is a state law that prihibites importation of out of state dolls, and Z is owns a store selling out of state dolls, does he have standing to challenge?

Answer 95

YES, as long as he will suffer economic harm because o his inability to sell the stuff.

Note, does not always have to be a foreign importer or a producer who cannot get his products into the state.

Question 96

what if there is a preemption issue but no federal law

Answer 96

=> use the Congressional intent test: did Congress instant to occupy the field

presumption is that there is no intent to occupy and Congress has the burden to show that it did (if no clear statue)

Question 97

Can states give their citizens greater protections than federal?

Answer 97

Yes, unless Congress says no.

Question 98

when can a person apply for a cert?

Answer 98

when exhausted all options below

Question 99

3d party standing 😾 Can a seller of goods/vendor have a standing to challenge a law that does not directly tell him what not to do/do on behalf of his clients.

Answer 99

Yes, if the law adversely affects the rights of her customers!

Same as the standing test:
> injury
> causation
> repressibility
> PLUS a CONNECTION/ NEXUS with people harmed
— can be an economic connection (skates rental vendor suing against law to prohibit skating)

Question 100

when confused in a Standing question

Answer 100

Be mechanical!

Ask 3 questions:

1) injury (mostly economic, environmental, etc.)
2) Causation
3) Redressibility

if no super direct injury, check if 3rd party issue.

> is there a sufficient LINK/NEXUS?
— ex: vendor on behalf of customer because the ban will kill her business.

Question 101

when may SCOTUS review decision from state court?

Answer 101

1) final judgment from the state court
2) highest state court (CA Supreme Court)
3) substantial federal Q being raised
4) state court decision did not rest on independent state grounds.
> there is independent state ground when STATE COURT RULED THAT THE CHALLENGED STATE LAW VIOLATED STATE CONSTITUTION.
- note: to confuse you, they may add another ground here re the law being preempted by federal statute. The second federal ground does not matter if one of the grounds is a valid state ground.

Question 102

Are courts allowed to issue advisory opinions?

Answer 102

these are opinions that have no binding, legal effect on the case.

> federal courts => NO WAY
state courts => are allowed

Question 103

When can Congress NOT put condition its funding/grants?

Answer 103

the it is unduly coercive!

like cannot say I will cut all your funding next year if you do not do what I say to a state.

Question 104

what are the limits of President as Commander in Chef

Answer 104

• not very clear

- Congress pays for it

Question 105

Limitation of President’s pardon power?

Answer 105

• if Congress impeaches a person => no presidential pardon.

BUT can pardon a person a federal official indicted by deferral grand jury who left the country.

• CANNOT PARDON STATE OFFENDORS, only federal.

Question 106

discrimination against foreign aliens

Answer 106

• state => SS, unless gov. function or congress allowed

- federal => RBR

Question 107

are there ANY irrefutable presumptions in con law?

Answer 107

NO!!! always a wrong choice

Question 108

Contracts Clause

Answer 108

ONLY applies to state laws that RETROACTIVELY invalidate already existing ks.

> unless serves important gov interest
narrowly tailored

does NOT apply to federal laws.

GOOD DEFENSE for a state
- 10th amendment > state is protecting citizens welfare rights

Question 109

Do gov. laws with general applicability that look like taking require a due process.

Answer 109

NO, general applicability laws do not!

Question 110

Is buying a land and giving it to a museum enough to constitute a state action?

Answer 110

NO, has to be substantial involvement.

if one time grant, no other entanglement, or no gov. function (utility), then it is not enough, so the private entity can discriminate as much as it wants, no constitutional issue (note: may violate a statute like the Civil Rights Act), unless it’s re slavery (13th Am.) which is a direct fed. violation

Question 111

DO NOT PICK EQUAL PROTECTION IF IT IS A FEDERAL LAW, ONLY PICK FOR STATE

Answer 111

IF FEDERAL LAW IS DISCRIMINATING, PICK FUNDAMENTAL DUE PROCESS UNDER 5TH AM.

Question 112

are religious members allowed to be in politics, boards, etc.

Answer 112

YES, this violated the free exercise clause

Question 113

free speech restrictions tested under intermediate scrutiny

Answer 113

• zoning laws re nude places, etc.
• symbolic speech
• time, place, manner - content neutral
• commercial speech
  => in between SS and Inter., substantial gov. interest. and narrowly tailored.

Question 114

What kind of forum can a library be?

Answer 114

• private forum usually (not a historically public forum) => so RBR
• Limited public forum - if opens rooms to be reserved by public at certain times => viewpoint neutral + substantial interest test

Question 115

what speech can press cover.

Answer 115

Press has a right to publish info about a matter of public concern and this can ONLY be limited if there is a HIGHER interest (right to privacy). check who is the other person - if a public person, low exception of privacy. May be limited if national security (Pentagon paper type thing).

even if info is obtained unlawfully

Question 116

what standard can state use to evaluate obscenity

Answer 116

• prurient interest
• patently offensive => can use state or community standard.
• literary, artistic, political value => MUST BE NATIONAL REASONABLE PERSON STANDARD

Question 117

when does the exception that can discriminate against non citizens in fields involving fundamental democratic processes NOT apply?

Answer 117

applies => to school teachers (fundamental impact on impressionable kids)

DOES NOT apply => to university professors.

Question 118

When is a tax is valid under the Commerce Clause?

Answer 118

A tax is valid under the Commerce Clause if:

(i) the tax does not discriminate against interstate commerce;
(ii) there is a substantial nexus between the activity taxed and the taxing state;
(iii) the tax is fairly apportioned; and
(iv) the tax fairly relates to services or benefits provided by the state.

Question 119

If Congress has delegated a power in certain area, may House pass a resolution to override it?

Answer 119

NO - separation of powers issue!

While Congress has broad power to delegate, the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism (i.e., passage by both houses of Congress).

Ex: By enacting the federal law allowing the administrative law judge to enter a final order with regard to aliens, Congress has given up any control it may have had previously in these situations.

Question 120

Are Congress members’ staff protected by the Speech and Debate Clause privilege as well?

Answer 120

Yes, conduct that occurs in course of legislative process (behind the scenes stuff to prep the member) is also protected by the privilege.

Question 121

Pardon power

Answer 121

this is a very broad constitutional power
> can be blanket, not mention the exact crime.

> even if the action of issuing the pardon amounted to the crime of obstruction of justice, the pardon itself would not be invalidated. The power to pardon is a constitutional power, superior to laws found in statutes.

> can pardon crimes that happened before he took office

Question 122

when would a federal court abstain?

Answer 122

when there is an unsettled question of state law below. Do not overuse this.

Question 123

what are the limits of executive privilege? (subpoena high executives)

Answer 123

Executive privilege is an inherent privilege necessary to protect the confidentiality of presidential communications.

Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence in a criminal case in which they are relevant and otherwise admissible. [United States v. Nixon (1974)]

Although the Supreme Court has not expressly decided that the privilege must also yield to a demonstrated need for evidence in a pending legislative proceeding, such an extension of Nixon is likely,

Question 124

if legislature creates a regulatory board

Answer 124

> cannot make it so a few members are from legislative branch!

This is executive thing! Congress can create the agency, but cannot appoint executive agency members. Article II gives this power to the President with Senate’s consent.

Question 125

do state legislators have immunity against federal claims,

Answer 125

Federalism principles => Yes, limited immunity from federal claims arising from the course of their official legislative duties - this is to protect state autonomy as much as possible.

Speech and Debate clause => gives limited immunity to state legislators against federal claims related to their legislative duties.

Question 126

if there is a federal statute, state takes it and plugs it in its constitution. Then, state Supreme Court reviews a case, can SCOTUS review this?

Answer 126

if the State courts base their decision on interpretation of the federal statute, then just state that also violates the state constitution => no independent state ground here, SCOTUS can review.

IF STATE COURT INTERPRETS STATE AND FEDERAL STATUTES CO-EXISTIVELY => SCOTUS CAN REVIEW VALIDITY OF FEDERAL STATUTE

so if see identical provisions and identical interpretation => can review

but careful is the same statute language, but state court says, this is how we have done this in this state, so will interpret this way based on state precedent => this is an independent ground!

Question 127

How can Congress monitor federal administrative agencies?

Answer 127

Congress can delegate some authority to fed, admin agencies to regulate stuff. Then Congress can monitor to make sure the rules are within the authority. Even if within authority, can repeal them with full leg. action.

Congress must pass a legislative action by both houses and send to President for approval to monitor committees.

Note: cannot just have a single Congress committee review an appeal admin rules.

Question 128

Can Congress Limit Supreme Court’s jurisdiction?

Answer 128

Article III explicitly allows Congress to make exceptions to the Supreme Court’s appellate jurisdiction without qualification.

Question 129

The enabling clause

Answer 129

The enabling clause of the Fifteenth Amendment allows Congress to adopt legislation protecting the right to vote from discrimination.

Question 130

That’s the scrutiny for children parent relationships?

Answer 130

SS - Fundamental right of privacy, and the fundamental right of privacy includes the right of parents to the companionship, care, custody, and control of their children. includes what school they should attend.

Question 131

when can feds tell states what to do?

Answer 131

The Supreme Court has held that the 10th amendment generally prohibits the federal government from regulating states alone.

However, states can be regulated through laws that apply generally. For example, under Congress’s commerce power, the federal government can require state governments to pay employees the federal minimum wage, like any other employer.

Moreover, it has been held that under Congress’s powers under the Fourteenth and Fifteenth Amendments, the federal government may restrict state activities that the federal government determines would violate civil liberties.

Question 132

Independent State Ground does not apply if

Answer 132

The Supreme Court will refuse to hear the case only if the state ground is adequate by itself to support the decision as well as independent, so that the Court’s review of the federal ground for the decision would have no effect on the outcome of the case (such as if the state court had found the law invalid under both the state and federal Constitutions).

Here, the Supreme Court’s review of the state court opinion on the law’s federal constitutional status may have an outcome on the case regardless of the state court’s decision on the state constitutional issue; the Court therefore will hear the federal issues involved.

Question 133

ex Post Pacto Clause

Answer 133

Cannot pass a new law that punishes past conduct that happened before the law became effective

Question 134

Bill of attainder

Answer 134

Prohibits passing a law that publishes a person without juridical trial by name or based on past conduct

Question 135

Is there a state action if state funds the school 90% and school wrongly fires a person for protected speech

Answer 135

NO!!even if the state is licensing or giving money, accreditation, permitting the conduct is not enough, there must be an affirmative act by the state approving the conduct.

Note, usually very hard to find a state action here, so private place people usually cannot bring a constitutional right claim against employer, unless can show active and affirmative state approval.

Question 136

can state make a child to attend certain school?

Answer 136

no, privacy fundamental right - would be strict scrutiny, but SCOTUS has explicitly prohibited this.

Question 137

who can sue a state in federal court?

Answer 137

• Another state can

CANNOT
> private party
> foreign government
> Native American tribe is treated as a private party,

Question 138

Can the President refuse to sign the budget bill and spend the money that Congress has designated for a specific purpose?

Answer 138

NO - MUST SIGN

The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress’s reason for making the appropriation.

Hence, the Supreme Court has ruled that there is no constitutional basis for the President to “impound” (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated. [Kendall v. United States (1838)]

Question 139

Can a President unilaterally void a treaty that Senate had confirmed when US entered into it?

Answer 139

YES! Constitution only requires the President to obtain the advice and consent of the Senate to enter into treaties; it does not require him to obtain Senate consent to void a treaty.

Question 140

Intergovernmental immunity

can state gov. go after federal employees within the state?

Answer 140

The states have no power to regulate the activities of the federal government unless Congress consents to the regulation.

Thus, instrumentalities and agents of the federal government are immune from state regulations that interfere with their federal functions

Question 141

Can a public school fire a teacher for exercising his First Amendment rights?

Answer 141

YES! Because public schools generally are not public forums, reasonable restrictions based on legitimate pedagogical concerns rather than the content of the speech are permissible. (like limiting the right to protest)

Question 142

Can a public employee have a liberty right to entitle her to a hearing before being fired even if she’s at will?

Answer 142

YES, First Amendment

P has liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.

A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority.

Question 143

US Postal Service - US postal monopoly

Answer 143

Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads.

This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail-public or private-can be established absent Congress’s consent. Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters.

Question 144

when cam members opt out of the class?

Answer 144

there are only two opt-out periods,

1) with the initial notice and
2) with the settlement agreement, and the latter only applies if the judge requires it.

In a “common question” class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out.

Question 145

when can gov. “make states pass laws” and not violate 10th Am.

Answer 145

Can attach conditions if:

(i) are clearly stated;
(ii) relate to the purpose of the program; and
(iii) are not unduly coercive.

Question 146

Appointment Clause - Article 4

Answer 146

Congress can vest the power to appoint executive people solely in the President, courts, or department heads, BUT CANNOT APPOINT ITSELF

“…. but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”