Con Law Incorrects

Question 1

spending power for C

Answer 1

Congress has the power to spend for the general welfare of the public.

Question 2

Priv and Immunity clause of Art IV

Answer 2

Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities, including the pursuit of employment, transfer of property, access to state courts, and engaging in the political process. Discrimination against out-of-state residents in setting the fee for a commercial activity, such as the oyster-fishing license here, violates the Privileges and Immunities Clause of Article IV, but similar discrimination for a recreational activity, such as a recreational hunting license, does not, if there is a rational basis for the fee differential.

The Privileges and Immunities Clause of Article IV prevents a state from treating citizens of another state in a discriminatory manner; it does not prevent a state from discriminating against its own citizens

Question 3

Regulating interstate commerce by a state even if non-discrim

Answer 3

A state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce. The courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives. If the benefits of the state law are grossly outweighed by the burdens on interstate commerce, then even nondiscriminatory regulation may be struck down.

Question 4

Pardon and Impeachment

Answer 4

The President’s power to pardon does not extend to impeachment of a federal official.

Question 5

Time, Place, and Manner Restrictions

Answer 5

The government’s ability to regulate speech depends on the forum in which the speech takes place. A traditional public forum is one that is historically associated with expression, such as sidewalks, streets, and parks. In a traditional public forum, the government may only regulate speech if the restrictions: (i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication. Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest.

Question 6

Ex Post facto Thing

Answer 6

The constitutional prohibition on an “ex post facto” law is confined to a retroactive change to a criminal or penal law. Similarly, the constitutional prohibition on a bill of attainder applies only to criminal or penal measures. A law that is civil in purpose is treated as a criminal law only if its punitive effect clearly overrides its civil purpose. Here, the retroactive application of the statute requires registration of convicted parental kidnappers, and public notification of information about the convicts. This does not constitute an ex post facto law or a bill of attainder because the statute is a non-punitive regulation enacted for the protection of the public.

Question 7

Due Process needs a pre-term oppo to respond

Answer 7

A public employee who may be discharged only for cause has a property interest in her job and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal hearing is not required, as long as there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing. In this case, the professor at the state university could only be fired for cause because she was tenured. Accordingly, due process required that the professor be provided with a pre-termination opportunity to respond

Question 8

Gag Orders

Answer 8

restrictions on the right of the media to publish about matters of public concern and the right of the public to receive such information may only be restricted by governmental action that is narrowly tailored to further a compelling government interest (i.e., strict scrutiny analysis applies). If there are less restrictive means of accomplishing the government objectives, those less restrictive means should be used. Note that gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant’s right to a fair trial.

Question 9

SOL Changes and the ex post facto thing

Answer 9

A statute of limitations, which addresses procedural rights, is remedial in nature. Consequently, unless a change to a statute of limitations violates a fundamental right or deals with a suspect classification, the statute must simply meet the rational basis standard of review.

Question 10

National Guard Stuff

Answer 10

National Guard units are under the dual control of the federal and state governments. Under the Militia Clauses (Art. I, Sec. 8, Cl. 15, 16), Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state

Question 11

Subversive Orgs

Answer 11

student lacked the specific intent to further the organization’s illegal objectives; this intent is necessary in order to punish her based upon her association with the group. The First Amendment’s freedom of association protects the right to form or participate in any group, club, or other organization virtually without restriction, but the right is not absolute. The government may justifiably infringe the right of association to advance a compelling state interest, such as preventing discrimination or subversive activities designed to undermine the democratic process. A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization’s illegal activities, and (iii) has a specific intent to further those illegal objectives

Question 12

Minister Exception

Answer 12

In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.

Question 13

Limited Pub Forum

Answer 13

A “public forum” may be traditional or designated. A designated (or limited) public forum is one that has not historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums. In either type of public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: (i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication of the information

Question 14

Felons in Voting

Answer 14

As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison

Question 15

11th amendment and state law claims

Answer 15

The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law.

Question 16

Younger Doctrine?

Answer 16

Under the Younger doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute

Question 17

Judge Recusal and the DPC

Answer 17

Due process entitles a person to a fair decision maker. A judge must recuse herself when she has a direct, personal, substantial, pecuniary interest in a case or there is a serious risk of actual bias. The judge’s refusal to recuse herself likely violated the Due Process Clause of the Fourteenth Amendment because there was a serious risk of actual bias toward the insurance company since the judge had a similar action against the same insurance company.

Question 18

SCOTUS reviewing a state court decision

I really don’t get these kinds of questions

Answer 18

The Supreme Court’s only power over a state court judgment is to correct the judgment when the state court incorrectly applies federal rights. Here, the Supreme Court can grant this petition because the state court judgment turns on the erroneous grounds that there is a federal constitutional privilege that protected the artist from a right to publicity cause of action.

Question 19

Gerrymandering based on race

Answer 19

Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. Note that the district may be able to pass the strict scrutiny test if it can be shown that the district was drawn in compliance with federal Voting Rights Act, but the call of the question only asks whether strict scrutiny should apply.

Question 20

C laws about DC

Answer 20

Under Article I, Section 8, Clause 17 of the U.S. Constitution, also known as the Enclave Clause, Congress has the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries. Among those powers is the power to tax or not to tax income earned within its boundaries.

Question 21

AISG

Answer 21

A final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court. The state-law grounds must fully resolve the matter (i.e., be adequate) and must not incorporate a federal standard by reference (i.e., be independent). When it is not clear whether the state court’s decision rests on state or federal law, the Supreme Court may hear the case, decide the federal issue, and remand to the state court for resolution of any question of state law.

Question 22

C can’t tax exports. hmm, good to know

Answer 22

Congress may not tax goods exported to foreign countries. Under the Export Taxation Clause, a tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited.

Question 23

Notice and Seizure of Property

Answer 23

Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute. However, the government does not need to provide notice prior to the seizure of personal property.

Question 24

More Takings Stuff

Answer 24

One way in which a taking may occur is through the destruction of property or the elimination of a property right. Here, while the supplier continued to possess a valid lien on the plane, the lien was worthless because the supplier could not enforce it against the U.S. Forest Service due to sovereign immunity. Because this action effectively destroyed the value of the supplier’s property lien, it constitutes a taking.

Question 25

Recognizing another country

Answer 25

The President represents and acts for the United States in day-to-day international affairs. In addition to appointing and receiving ambassadors, the President has the exclusive power to recognize a foreign government. Consequently, because the President has exclusive power over the recognition of a foreign country, the court should not grant the injunction because it would require the passport office to recognize a country that the President has not yet recognized.

Question 26

Spending Power Limitations

Answer 26

While Congress has the power under the spending power to spend for the general welfare and may impose conditions on the receipt of an appropriation by a state, such conditions must be set out unambiguously to be enforceable. Since expert fees were not unambiguously included in the amounts that may be recovered by the parents of a child with special needs under this statutory cause of action, these fees cannot be recovered.

Question 27

Immunity from state taxation

Answer 27

The federal government and its instrumentalities (such as a national bank chartered by the federal government) are immune from taxation by the states. In this case, the Department of Defense, part of the federal government, is immune from taxation by the state for any purchases made pursuant to the defense contract.

Question 28

Drinking laws….

Answer 28

The Twenty-First Amendment, in addition to repealing prohibition, specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state.

Question 29

Elections Clause

Answer 29

The Elections Clause explicitly empowers Congress to override state laws concerning federal elections

Question 30

Inferior Appointees

Answer 30

Congress may delegate the appointment of “inferior” officials to the President. “Inferior” officials are those supervised by Senate-confirmed appointees.

Question 31

Homeschooling

Answer 31

While parents do enjoy a fundamental right to make decisions regarding the care, custody, and control of one’s children, including the right to privately educate one’s child outside the public school system, that right is subject to reasonable educational standards imposed by the state. Consequently, the court must strike down any requirements that the court finds impose unreasonable educational requirements on the homeschooling of children.

Question 32

Blanket primary?

Answer 32

A state may institute a blanket primary system in which all voters participate. However, the First Amendment freedom of expression and association prohibit states from interfering with a political party’s endorsement of a candidate or selection of a candidate. Because this system does not appear to do either one, it is likely constitutional.

Question 33

Minister Exception

Answer 33

The Free Exercise Clause protects a religious organization’s right to shape its own faith and mission through its choice of ministers. The Establishment Clause prevents the government from imposing its choice of a minister on the organization. Together, these clauses create a ministerial exception that operates as an affirmative defense to an employment discrimination claim brought by a minister.

Question 34

Removing citizenship

Answer 34

The protection of national citizenship in Clause I of the Fourteenth Amendment prevents Congress from taking away a person’s citizenship without her consent, unless that citizenship was obtained by fraud or in bad faith.

Question 35

Something about Congress and Appointment

Answer 35

Congress may not appoint members of a body with administrative or enforcement powers. Such persons are “officers of the United States” and must be appointed by the President.

Question 36

State vs Federal Land disputes

Answer 36

The Property Clause of Article IV, Section 3 states, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This power includes not only the power to dispose of property owned by the United States and to make incidental rules regarding its use, but also the power to protect the property. Although a state generally has the same right as any property owner to construct a fence on its property, this right must give way to federal regulation.

Question 37

When C can do something about a con violation?

Answer 37

The federal government may exercise only those powers specifically enumerated by the Constitution. The Fourteenth Amendment, Section Five Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones. In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. Accordingly, though Congress may override state government action that infringes upon Fourteenth Amendment rights, its enforcement power would not stretch to prohibit a law that does not violate the Constitution. In other words, as there would be no constitutional injury to prevent or remedy, the proposed law would be both incongruent and disproportionate.

Question 38

Habeas Action under Sovereign Control

Answer 38

Under the Suspension Clause of Article I, Section 9, Clause 2, a detainee retains the privilege to file a habeas corpus petition unless this privilege is suspended. This clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States.

Question 39

SCOTUS Appeal

Answer 39

Pursuant to the Article III, Section 2 of the U.S. Constitution, the U.S. Supreme Court’s appellate jurisdiction is subject to “such exceptions, and under such regulations as the Congress shall make.”

Question 40

Taxes on a gov’t project by a private party?

Answer 40

Although a state may not tax the federal government or its instrumentalities, there is no similar restriction on the taxation of property owned by a private individual

Question 41

Takings Public Peril Exception… Fuck all of this

Answer 41

Although the Fifth Amendment Takings Clause, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, requires the payment of just compensation when there has been a governmental taking of private property for public use, a government may destroy property in response to a public peril without the payment of compensation.

Question 42

EPC and One Person One Vote

Answer 42

Pursuant to the Equal Protection Clause, the principle of “one person, one vote” requires that one person’s vote must be essentially equal to any other person’s vote. The “one person, one vote” principle applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature, such as a local school board. The restriction of voting to a class of persons (e.g., landowners) has generally been found to violate the “one person, one vote” principle, except in the case of water-district elections.

Question 43

More one person one vote stuff

Answer 43

Although the “one person, one vote” principle that is based on the Equal Protection Clause of the Fourteenth Amendment does apply to state legislative districts, a state may draw its legislative districts on the basis of total population rather than eligible or registered voters. In addition, a variation of less than ten percent in the size of a state legislative district is rebuttably presumed to be a minor deviation that does not constitute a prima facie case for discrimination.

Question 44

Terrible fucking question on Due Process

Answer 44

A student is not entitled to a hearing with regard to dismissal for academic reasons from a public institution of higher learning.

Question 45

Terrible question on gov’t employment and the first amendment.

Answer 45

When a government employee contends that his rights under the Free Speech Clause of the First Amendment, as made applicable to state and local government action through the Fourteenth Amendment, have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern.

Question 46

Assigned claimed and standing

Answer 46

An assignee has standing under Article III to bring an assigned claim, even if the claim is mature at the time of assignment and the assignment is made for collection only.

Question 47

Some tax thing I have never heard of and don’t understand

Answer 47

Article I, Section 9 provides that “no . . . direct tax shall be laid, unless in proportion to the Census[.]” Although there is dispute as to the types of taxes that are encompassed within the definition of a direct tax, a tax on real property interests is undisputedly a direct tax. To satisfy the apportionment rule, a state with twice the population of another state would have to pay twice the tax, even if the more populous state’s share of the national tax base were smaller.

Question 48

Supremacy Clause Immunity….

Answer 48

The federal marshal can argue that, since the killing occurred when he was acting as a federal law enforcement officer, he enjoys immunity under the Supremacy Clause from state prosecution for his actions.

Question 49

Federal EPC

Answer 49

Since the executive order applies to anyone who was born in the island nation, it is based on a national origin. National origin is a suspect classification under the Fifth Amendment’s Due Process Clause. Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states. Consequently, the strict scrutiny test applies to the executive order, and the burden is on the government to establish that the executive order meets this test.

Question 50

Multiple internaitonal Taxation and Dormant COmmerce Clause

Answer 50

A state tax imposed on interstate commerce must satisfy the Complete Auto test. Under this test, (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state. In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues. Under these facts, because the cargo containers are subject to tax by the home country of the foreign corporation, the state tax subjects the containers to international multiple taxation, and thus the first of these two additional requirements has not been met.

Question 51

Testfying as a public employee?

Answer 51

When a government employee contends that his rights under the Free Speech Clause of the First Amendment have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern. In determining whether a government employee is speaking pursuant to his official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. When a public employee is speaking about a matter of public concern as a citizen rather than as employee, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs.

Question 52

15th amendment and 14th EPC handle voting race claims

Answer 52

The Fifteenth Amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted.

Question 53

PDP for a congressional investigation

Answer 53

Congress does not have an express power to investigate, but the Necessary and Proper clause allows Congress broad authority to conduct investigations incident to its power to legislate. While a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, the witness is entitled to certain procedural due process rights, including the presence of counsel.

Question 54

Where a state is a party…

Answer 54

Section 2 of Article III of the U.S. Constitution specifically provides that the Supreme Court has original jurisdiction over all cases in which a state is a party. N

Question 55

Speech and Debate Clause

Answer 55

The Speech or Debate Clause of Article I, Section 6 protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. However, this protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts

Question 56

How to pay taxes in state?

Answer 56

The Supremacy Clause makes the U.S. Constitution, as well as federal laws and treaties, the “supreme law of the land.” Under Article I, Section 10 of the U.S. Constitution, a state is prohibited from coining money or making anything but gold and silver coin a tender in payment of debts. Consequently, the state statute is authorizing the payment of a debt in a form that the U.S. Constitution prohibits it from doing.

Question 57

Congress and final judgment review via legislation

Answer 57

Congress may not reinstate the right to bring a legal action after the judgment in the action has become final. Requiring a federal court to do so violates the separation of powers doctrine. Once a judicial decision becomes the final word of the federal judiciary with regard to a particular case or controversy, Congress may not declare by retroactive legislation that the law applicable to that particular case was different from what the courts said it was

Question 58

AISG Again

Answer 58

The U.S. Supreme Court does not have appellate jurisdiction over a decision by the highest court of a state when that decision is supported by state law grounds that are (1) independent of federal law and (2) adequate to sustain the result in the case. The result in this case is fully supported by the state court’s ruling that the law violated the state constitution, and this ruling is independent of any consideration of the federal constitutional claim. Accordingly, even if the U.S. Supreme Court were to reverse the state court’s ruling on the federal constitutional issue, the result in the case would not change, and thus the decision is not reviewable

Question 59

More Campaign voting stuff

Answer 59

A state cannot require a local party to participate in an open primary (i.e., a primary in which any voter in the state may vote in a political party’s primary) to choose presidential electors where the national party has required that electors must be chosen only by party members. In addition, a state may not prohibit a political party from allowing independents to vote in its primary.

Question 60

False or misleading commercial speech

Answer 60

The drug company’s claim that the drug was safe for children is commercial speech because it promoted the sale of a commercial product. U.S. Supreme Court precedent establishes that the First Amendment does not protect commercial speech that is false or misleading. Fraudulent commercial speech may actually be prohibited on the basis of content.