con law (C&C/DP/EP)

Question 1

strict necessity

how is a case “justiciable” and thus can be heard by SCOTUS

Answer 1

depends on whether there is a “case or controversy”

Question 2

strict necessity

what type of opinions can the court not issue and why

Answer 2

advisory opinions –there must be a present risk of harm or threat of specific future harm

Question 3

strict necessity

what are the 3 primary inquiries for the case or controversy requirement

Answer 3

1. ripeness
2. mootness
3. standing

Question 4

standing

how does an organization have standing

Answer 4

1. injury in fact to the members that gives them the right to sue on their own behalf
2. injury related to organization’s purpose
3. individual member participation is not required

Question 5

standing

how does an individual have standing to bring a claim

Answer 5

1. injury in fact
2. act in issue was the cause of the injury
3. adjudication in favor of the challenging party would satisfy their grievance (redressability)

Question 6

standing

how can a person with standing assert third party rights

Answer 6

1. if the third party would find it difficult to assert her own rights; or
2. the injury suffered by the plaintiff adversely affects her relationship with the third party (e.g., doctor can assert a patient’s rights in challenging an abortion restriction)

Question 7

relative spheres of federal and state power

what does the supremacy clause provide

Answer 7

federal law is supreme and state laws that are preempted by federal law are invalid

Question 8

relative sphres of federal and state power

how can state laws be preempted

Answer 8

1. expressly (federal law expressly preempts state law)
2. impliedly (state law conflicts with federal law, prevents the achievement of federal objectives, or because Congress’s laws are so pervasive they preempt the entire field)

Question 9

relative sphres of federal and state power

what do courts start with when analyzing whether a state law is preempted by federal law

Answer 9

in cases involving a field traditionally within the power of states, courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress

Question 10

relative sphres of federal and state power

when are state laws not deemed invalid under the Supremacy Clause

Answer 10

state laws that regulate consistently with federal policy and in a manner that reinforces said policy

Question 11

procedural DP

what does procedural due process prohibit

Answer 11

prohibits a person from being deprived by the government of life, liberty, or property without due process of law

Question 12

procedural DP

what 3 questions must be asked to answer a procedural due process question

Answer 12

1. is there a protected liberty or interest involved?
2. did the individual receive adequate notice?
3. was the individual given a meaningful opportunity to be heard, tailored to the deprivation in question?

Question 13

procedural DP

how is the concept of property understood

Answer 13

it is flexible; an individual must prove a legitimate “claim” or “entitlement” to a benefit under federal or state law

Question 14

procedural DP

how is the concept of liberty understood

Answer 14

more than just freedom from bodily restraints. deprivation occurs if a person (1) loses significant freedom of action or (2) denied freedom provided by Constitution or statute

Question 15

procedural DP

what does the court assess to determine whether the process was appropriate

Answer 15

1. the nature of deprivation (importance of interest)
2. the government’s interest involved (fiscal and administration policy)
3. the risk of an erroneous deprivation (value of specific procedural safeguards)

Question 16

procedural DP

what is usually required for process

Answer 16

1. fair procedures and an unbiased decisionmaker
2. notice and chance to respond before termination of the interest involved

Question 17

procedural DP

what determines whether someone has a property interest in state employment

Answer 17

state law

Question 18

procedural DP

when does DP protection apply for a property interest in continued employment

Answer 18

if a policy says an employee can only be fired under certain circumstances, then DP protections apply

Question 19

substantive DP

what does substantive DP require

Answer 19

laws must be (1) reasonable and (2) not arbitrary

determination of whether a law is reasonable depends on the interests involved

Question 20

substantive DP

when does strict scrutiny apply

Answer 20

where a law limits a fundamental right, and the law will only be upheld if the government can prove that the action is necessary to promote a compelling or overriding interest

Question 21

substantive DP

when does rational basis apply

Answer 21

all other cases; action will be upheld unless the challenger can show that the action is not rationalyl related to any legitimate government interest

Question 22

substantive DP

what does the court employ when assessing whether a regulation passes the rational basis test

Answer 22

a deferential review –presumption of constitutionality

Question 23

what is the vagueness doctrine

Answer 23

law can be held unconstitutional if it fails to prove reasonable notice of what is prohibited and minimal guidelines to discourage arbitrary and discriminatory enforcement

Question 24

EP

what does EP prohibit

Answer 24

prohibits states from unreasonably discriminating against people in similar situations

Question 25

EP

what determines what test to apply for EP

Answer 25

dependent on the basis of discrimination and the nature of interests involved

Question 26

EP

when does strict scrutiny apply

Answer 26

when the action involves a fundamental right or suspect classification (e.g., race) – government must show that the action is narrowly tailored to achieve a compelling state interest

Question 27

EP

when does intermediate scrutiny apply

Answer 27

when an action involves quasi-suspect classification (e.g., gender or legitimacy)

Question 28

EP

when does rational basis apply

Answer 28

all other cases – classifications must have some rational relationship to a legitimate government objective