Con Law

Question 1

Standing

Answer 1

Whether a party can bring a matter to court

1. injury in fact
2. Causation- D caused the injury
3. Redressability- is the court likely to remedy the harm

GR: a tax payer lacks standing to challenge a federal expenditure of tax revenue

Exception: have standing to challenges if violates establishment clause or an express constitutional provision

look for someone challenging the law.

Question 2

Associational Standing

Answer 2

An organization may sue for its members if the members would have standing to sue and the interests are germane to organizations purpose

Question 3

Ripeness and Mootness

Answer 3

Whether a federal court has the power to review/enforce the law

1. Hardship- will there be without court involvement. Court more likely to hear the greater the hardship
2. Fitness of the Issue- does the court have everything it needs to decide on the matter

Look at P is harmed and injury has occurred or is reasonably likely to occur imminently

Mootness: P must present a live case or controversy through non-frivolous money damages

Question 4

Lack of Standing

Answer 4

1. Under the U.S. Const. courts cannot render advisory opinions. They are opinions that concern hypothetical facts and abstract issues that do not satisfy requirements of standing.
2. soverign immunity-under 11th amend a P does not possess standing in a federal court to file an action seeking damages against any one of the states. It protects the state from a law suit without its consent

GR: a tax payer lacks standing to challenge a federal expenditure of tax revenue

Ex: if statute violates the establishment clause or an express constitutional provision

Question 5

11th Amendment

Answer 5

sovereign immunity
As a general rule, Under the 11th amend of the U.S. constitution a P does not possess standing in a federal court to file an action seeking damages against any one of the states.

An exception to this general rule is The Federal Tort Claims Act, which allows a P to sue a federal governmental entity and/or federal employees who have caused a P injuries as a result of certain tortious conduct.

A state can also choose however to consent to such a suit and partially waive their sovereign immunity

Question 6

Supremacy Clause

Answer 6

• when state law and federal law conflict. Federal law wins because supreme law of the land
• States are generally prohibited from enacting laws that interfere with operations/activities of federal government. A state is NOT allowed to regulate the federal government unless
  1. fed government consents
  2. state law is consistent with existing federal law

Can mention Preemption- Because of the supremacy clause federal law is considered to preempt or override state law. Exception: when you can comply with both federal and state law

Question 7

10th Amendment

Answer 7

State Police power to protect for health, safety, welfare and morals of its citizens as long as it doesn’t conflict with the U.S. constitution and passes RB

• Commandeer rule- fed gov cannot require a state to do anything
• School officials have a police power to protect students and staff from threatened or potential violence or illegal activity on campus when lawfully acting in loco parentis (in the place of the parents) as quasi-parents to the students.

Question 8

Necessary and Proper Clause

Answer 8

Art 1. sec. 8 congress can adopt all laws that are necessary and proper to exercise authority
- congress can choose any means to carry out power (enumerated powers)

Question 9

Commerce Clause

Answer 9

The usual rule prohibiting congress from overruling a constitutional decision by SCOTUS does NOT apply to enactments based on congress’s commerce power because the constitution gives congress plenary authority to regulate conduct that is within the commerce power
N&aP clause gives congress power to
1. regulate channels of IC
2. regulate instrumentalities
3. activities that have a substantial effect on IC
- Broad power, plenary, mention aggregation (congress may aggregate local effects that have a substantial effect on IC)

Question 10

Presidents Enumerated Powers

Answer 10

1. Veto
   • no line-item veto: sign some parts veto other
   • Every act of congress must be approved by president unless passed over disapproval
   (veto) by 2/3 vote in each house. President has 10 days to exercise veto power. If no action bill becomes a law if congress is in session, otherwise automatic veto if out of session.
   2.Power of Appointment- joint with Congress as long as congress has no regulatory rule making authority. If there is then members need to be appointed by prez and approved by senate
2. Pardon- federal crimes only
3. commander in chief
4. treaties
   6.Executive orders & agreements
5. foreign relations and recognition of nations

Question 11

Congressional Enumerated Powers

Answer 11

1. Tax- plenary
2. Spend
   Courts apply RB standard
   
   1. reasonable benefit to general welfare
   2. concrete objectives
   3. Adequate criteria
      
      • Prez may veto an appropriations bill (on spending) but congress may OVERRIDE IT
3. Commerce clause- plenary
4. Declare War
5. Foreign Affairs
6. Coin Money
7. Aliens
8. Federal Land- no fed police power but MILD
9. Can limit SCOTU’s appellate J
   - congress can delegate/give away power but CANNOT take power away from the other branches (ie. congress does NOT retain veto power)

Question 12

Presentment Clause

Answer 12

Art. 1 sec. 7 of constitution says every order resolution or vote to which the concurrence of the senate and house may be necessary shall be presented to the president

Question 13

Dormant Commerce Clause

Answer 13

AKA Negative Implications of CC
state/local laws are unconditional if they place an excessive burden on IC
Face- apply SS
Incidental- IS
Market Participant- exception when state controls/runs the industry

Question 14

Privleges and Immunities

Answer 14

protects citizens/corp/entities (NOT ALIENS) from discrimination of instate vs. out of state

if discrimination is fundamental rights= choice will be EP or P&I (14th)

if out of state citizens doing biz= choice will be P&I (Art. IV) or IC (Commerce Clause)
- generally when see biz/commercial value= any interference will be IC issue. If see IC as answer GR is pick that.

Exceptions: IC will lose if no commercial/monetary value or commander rule

When P& I applies you apply SS. Can discriminate if can show SUNSTANTIAL JUSTIFICATION and NO LESS RESTRICTIVE means to save the problem that non residents are causing that they are trying to correct with their state law

EP DOES NOT APPLY TO LEGISLATIVE ACTS

Question 15

Levels of Scrutiny

Answer 15

Strict (Suspect)- race, alienage, national origin, law is necessary to achieve a compelling gov purpose. Gov has burden

Intermediate (Quasi-Suspect)-substantially related to an important government purpose. Gov has burden. General, and illegitimacy

Rational Basis (non-Suspect)- rationally related to a legitimate gov purpose

Question 16

Proceedural Due Process

Answer 16

if a state is to take away someones life, liberty or property then a fair process must exists involving NOTICE and HEARING by a neutral decision maker and the right to appeal at least once

property rights must have vested
gov can be liable in emergency situation if conduct shocks the conscience

Question 17

Substanitive Due Process

Answer 17

gov taking away right of ALL ppl

Question 18

Fundamental Rights

Answer 18

1. vote
2. speech
3. Travel

Privacy Rights- CAMPER
Contraception, abortion, marriage, procreation, private education, raise a family

Question 19

Equal Protection

Answer 19

The 14th amendment to the U.S. Const. prohibits states from depriving any citizen of due process. The due process clause applies to both procedural acts of government and protection of federal constitutional rights. When a governmental act discriminates or places a restraint on a fundamental right the action violates due process protections.

Although the 14th amend due process clause facially only applies to states, it is applicable to the federal government as to the same protections that the 5th amendment guarantees

Question 20

Takings Clause

Answer 20

1. Gov taking pvt. property
2. for public use
3. with just compensation (reasonable market value in terms of loss to owner)
4. Possessory- confiscation or physical occupation or prop that impairs use
5. Regulatory Taking/inverse Condemnation- leaves no reasonably economically viable use of the prop

• in FL compensation is not required when the use of eminent domain the gov destroys a serious and imminent threat to public health, safety and welfare

Question 21

K Clause

Answer 21

no state shall pass any law impairing the obligation of K

Question 22

Ex Post Facto

Answer 22

laws criminally punishing past acts that were lawful when it was done

Question 23

Bills of Attainder

Answer 23

punishing an individual or a group

• SCOTUS has held that a statute barring particular individuals from gov employment qualified as punishment within meaning of bill of attainder

Question 24

First Amendment

Answer 24

Protects several basic freedoms including freedom of religion, speech, expression, right to assemble

racial motivation- threatening communication/intimidations SCOTUS said unconstitutional and not protected speech

Whistle blower- falls under 1st
political lobbying or demonstration is protected under 1st and 14th

Question 25

Content Based Restrictions

Answer 25

Gov stopping message/speech

Apply SS and narrowly tailored (meaning least restrictive means to achieve goal)

Question 26

Content-Neutral

Answer 26

Regulation of Speech
time/place/manner restriction
a form of IS
1.does the restriction reasonably serve a significant gov interest
2. leave open alternative means of communication
3. narrowly tailored to exclude other content

Question 27

Prior Restraints

Answer 27

stops speech before it occurs are usually per se invalid so apply SS

Question 28

Vague and Overbroad

Answer 28

Vague- A law must be clear enough on its fact to provide a reasonable person with notice of what it covers
Speech- a reasonable person cannot tell what speech is prohibited

Overbroad- A law cannot restrict/[rohibt a broader scope of expression that it is necessary to prohibit
Speech-regulates more speech than the const allows to be regulated

Question 29

Obscenity and Sexually Oriented Speech

Answer 29

1. material must appeal to the prudent int or shameful or morbid int in sex (local standard)
2. material must be patently offensive
3. Taken as a whole the material must lack serious redeeming artistic literary, political or scientific value (national standard)

Question 30

Commercial Speech

Answer 30

biz speech
type of IS
1. reasonable fit to a substantial gov int
2. narrowly tailered
3. directly advances int.

Question 31

Forums

Answer 31

1. Public- prop gov const. required to make available for speech (parks, streets and sidewalks)
2. Designated Public- prop gov could close off but choose to voluntarily leave open
3. Limited Public- prop gov limits to certain groups (school being open for church on Sunday or candidates during elections)
4. Non-Public- prop gov can close off to speech

Question 32

Freedom of Association

Answer 32

laws that prohibit or punish group members must meet SS. To punish must prove

1. actively affiliated with group
2. has knowledge of groups illegal activities
3. has specific intent of furthering those illegal activities or objectives

GR: does not protect the right to discriminate
E: intimate association (small group) or where discrimination is integral to the expressive activities of the group (KKK, Nazi’s)

Question 33

Free Exercise Clause

Answer 33

Gov must remain neutral on practice of religion. A law neutral on religion will be const. even if effect prohibits religion

Question 34

Establishment Clause

Answer 34

gov cannot pass a law that establishes religion
Lemon Test
1. Secular purpose
2. primary effect must not advance or inhibit religion
3. there must not be excessive entanglement

building aid alone does not create excessive entanglement especially when there is a secular purpose

Question 35

Fighting Words

Answer 35

A. Clear and Present Danger

1. individual engages in expressive conduct intending to produce imminent lawless conduct
2. the expressive conduct calls for imminent lawbreaking and
3. lawless conduct will likely occur

B. Fighting words made to provoke and likely cause physical violent reaction

Question 36

Advisory Opinions

Answer 36

mention with standing
Under the U.S constitution a court is not allowed to issue advisory opinions. Those are hypothetical facts and abstract issues

Question 37

False Speech

Answer 37

speech that is false or seriously misleading is not protected speech

Question 38

Taxes

Answer 38

GR: Under the 11th the federal government is immune from state tax.

• A state may hover impose an indirect and non-discrimitory tax upon the federal government. (I.e. a state could impose a uniform tax upon similarly situated tax payers of a particular status for which includes government employees but that does not adversely treat them differentlyP
• An act of congress to impose a tax will be sustained if
  1. Subjective standard: the tax is intended to raise revenue
  2. Objective standard: the tax in fact raises revenue
• a court will uphold a tax that adversely impacts the taxed activity if the tax meets the above two prongs and
  1. lacks any provisions that are unrelated to the tax needs and purposes and
  2. no language in the constitution prohibits it

Note: tax monies are not required to be used for a purpose related to the item being taxed (I.e. sin taxes for alcohol, tobacco and lottery are used to fund public schools in many states)

Question 39

Separation of Powers

Answer 39

The powers of the state government shall be divided into legislative (makes the law), executive (enforces the law) and judicial (interprets the laws and actions of executive) branches. No person belong to one branch shall exercise powers appertaining to either of the other branches unless expressly provided in the constitution.

Question 40

Mootness

Answer 40

P must present a live case in controversy through non-frivolous money damages otherwise the case is considered moot (too late, nothing can be done)

Exceptions

1. a wrong capable of repittion
2. voluntary cessation (person stops and starts again)
3. class action (if reps case because moot make sure other members in class are still viable)

Question 41

13th and 15th Amendment

Answer 41

13-bans slavery.

15th- racial discrimination and voting

Question 42

Privacy and 1st Amendment

Answer 42

a state may not create liability for the truthful reporting of information that was legally/ lawfully obtained from the gov records

• Media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call as long as the media did not participate in the illegality and it involves a matter of public importance.
• Gov may restrict its own dissemination of information to protect privacy. The only instance where public has 1st amend right to attend gov proceeding and have access to gov papers is criminal trials and most criminal pretrial proceedings