Con law review

Question 1

When is a civil law ex post facto?

Answer 1

A civil law is ex post facto when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose

Question 2

Ex post facto and criminal v. civil cases

Answer 2

Ex post facto clauses generally prohibit state and fed governments from enacting criminal laws that have a retroactive punitive effect.

BUT a civil law will also be deemed ex post facto when its retroactive effect is so punitive it clearly overrides the law’s nonpunitive purpose

Question 3

Why are federal laws based on citizenship presumptively constitutional?

Answer 3

Because congress has plenary authority over immigration and naturalization

Question 4

How to show law violates EPC of 5th Amendment

Answer 4

Challenger must show that the law is not rationally related to a legitimate government interest – i.e., that it is arbitrary or unreasonable

5th A EPC applies when fed law discriminates against resident noncitizen

Question 5

EPC under 14th A vs 5th A

with regard to citizenship

Answer 5

14th A EPC deals with states law and citizenship

5th A EPC deals with federal law and citizenship

Question 6

What does EPC of 5th Amendment require

with regard to laws based on US citizenship

Answer 6

The EPC of the 5th Amendment requires federal laws based on US citizenship to satisfy rational basis scrutiny.

Burden on challenger to prove that law is not rationally related to a legitimate government interest

Question 7

Due process requirements for public employee who can only be terminated for cause

Answer 7

Because a public employee who can only be terminated for cause has a property interest in employment, due process requires
- notice of alleged misconduct
- a pre termination opportunity to respond to allegations; and
- a post termination evidentiary hearing to determine if termination was warranted

Question 8

Standard of review for government action that abridges freedom of the press

Answer 8

A government action that inhibits the press’s right to publish lawfully obtained information about matters of public significance is presumptively unconstitutional and must survive strict scrutiny.

Government must prove action was the least restrictive means to achieve a compelling government interest

Question 9

Review for laws that retroactively impair an ordinary right

Answer 9

Laws that retroactively impair an ordinary right can be challenged on DP grounds. Those laws are reviewed under rational basis scrutiny

E.g., - the right to raise statute of limitations as a defense

Question 10

Scrutiny for EPC challenges

Answer 10

Equal protection challenges are generally subject to rational basis scrutiny. This requires the challenger to prove that a discriminatory government action has no rational relation to a legitimate government interest

Question 11

When can gov interfere with 1A freedom of association thru punishment?

Answer 11

Gov can interfere with 1A freedom of association by punishing people who
1. Are active members of a subversive organization
2. Know of the organization’s illegal objectives; AND
3. Specifically intend to further those objectives

Question 12

When are content based restrictions in public forums OK

Answer 12

The government can only impose content based restrictions on speech in public forums if the government can satisfy the strict scrutiny test – that the restriction is necessary to achieve a compelling government interest

Question 13

What part of the 14A allows states to prohibit felons from voting

Answer 13

Section 2 of the 14th Amendment allows states to prohibit felons, even those unconditionally released from prison, from voting in elections

Question 14

11th Amendment bar to suing state officials

Answer 14

The 11th Amendment bars private parties and foreign governments from suing a state in federal court without the state’s consent. This immunity extends to suits against state officials for a violation of state law, regardless of the type of remedy that is sought

Question 15

Younger abstention doctrine

Answer 15

Younger doctrine requires federal abstention when relief would interfere with a pending state proceeding on any criminal matter or civil matter that
- involves an important state interest; and
- provides an adequate opportunity to litigate the federal issue

Question 16

Does commerce clause give congress the authority to regulate foreign commerce?

Answer 16

Yes. Commerce clause gives congress the plenary authority to regulate foreign commerce. This includes imposing tariffs on imported goods.

Question 17

Judge recusal and 14th A

Answer 17

14th A requires government provide a meaningful opportuinity to be heard before a neutral decision maker

As a result, a judge must recuse themself from a case where
1. Judge has a direct, personal, substantial, pecuniary interest in it; or
2. A serious, objective risk of actual bias exists

Question 18

If a state’s highest court denies review of a case, can SCOTUS grant certiorari to review it?

Answer 18

Yes, so long as it is not a decision based on adequate and independent state grounds and the state’s highest court’s denial is their final decision on the matter.

Question 19

Race and boundary lines for state/federal legislative districts

Answer 19

Race cannot be the predominant factor used to draw boundary lines for districts. If it is, those lines will be subject to strict scrutiny and likely invalidated on EPC grounds

Question 20

Can congress tax exported goods?

Answer 20

No. The export clause prohibits federal taxation of exported goods and services and activitites related to the export process.

Question 21

11th Amendment immunity for state officials

Answer 21

The 11th amendment bar from suing a state extends to suits against state officials for a violation of state law, regardless of the type of remedy that is sought

Question 22

Review standard for discriminatory laws based on national origin

Answer 22

EPC requires federal laws based on US citizenship to satisfy rational basis scrutiny. So the challenger has the burden to show the law is not rationally related to a legitimate government interest

Question 23

Enclave clause

Answer 23

The enclave clause gives Congress plenary legislative power to govern the District of Columbia

Question 24

Due process required in civil forfeiture actions

In general

Answer 24

Procedural due process generally requires the government to provide reasonable notice of the seizure and a meaningful opportunity to be heard.

Question 25

Personal property being seized prior to notice and a hearing

Answer 25

In a civil forfeiture action, personal property may be seized prior to a notice and a hearing when
- the seizure serves a significant government interest
- the interest would be frustrated by advance notice of the seizure; and
- the seizure is performed by the government

Question 26

When may real property be seized without notice and a hearing

Answer 26

In a civil forfeiture proceeding, real property may be seized by the government prior to notice and a hearing if the court can balance
- the private interest affected by the deprivation
- the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute safeguards and
- the government’s interest, including fiscal and administrative burdens that other safeguards would entail

Question 27

Takings and nonpossessory interests

Answer 27

A taking occurs when the government destroys private property or property rights, including nonpossessory interests like easements and liens

Question 28

Effect of the taxing and spending clause

Answer 28

The taxing and spending clause gives congress broad discretion to spend for the general welfare, such as public education

Question 29

Conditioning federal funds

Answer 29

Congress can use its spending power to incentivize states to adopt federal policies by placing appropriate conditions on the receipt of federal funds.

Question 30

When is a condition on federal funds appropriate

Answer 30

A condition is appropriate when it
- is clear and unambiguous
- is reasonably related to the purpose for which the funds will be expended
- does not require recipients to engage in unconstitutional activity and
- is not unduly coercive

Question 31

When is a condition unduly coercive?

Answer 31

A condition is unduly coercive if it amounts to a “gun to the head” of a state – such as a condition that witholds 10% of the state’s overall budget.

Question 32

Basic standard of review for discriminatory laws

Answer 32

Discriminatory laws are challenged under the EPC and are generally subject to rational basis review, which requires a law be rationally related to a legitimate government objective.

Question 33

Heigtened scrutiny and EPC

Answer 33

Heightened scrutiny is used when a law substantially impacts a fundamental right or intentionally discriminates against a quasi suspect or suspect class

Question 34

How does a law intentionally discriminate

Answer 34

• on its face (language of law distinguishes between different classes)
• in its application (facially neutral law is purposefully applied differently)
• in its motive (otherwise neutral law are enacted to impact a protected class)

Question 35

Standard of review for laws that discriminate against homeless people

Answer 35

Laws that discriminate against homeless people are subject to rational basis review. To satisfy this standard of review, the state law must rationally relate to a legitimate government interest – it cannot disadvantage a group solely based on animus towards them

Question 36

State law discrimination based on national origin

Answer 36

These laws are typically unconstitutional unless they survive strict scrutiny

Question 37

First amendment protection to media for publishing truthful information unlawfully obtained

Answer 37

The first amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if
1. the information involves a matter of public concern; and
2. the publisher neither obtained it unlawfully nor knows who did

Question 38

When can congress delegate its incidental legislative powers to federal agencies

Answer 38

Congress can delegate its incidental legislative powers to federal agencies if it provides an intelligible principle to guide the agency
1. a clear statement defining the policy
2. indicating which agency will carry out that policy
3. the scope of the agency’s authority

Question 39

How can government impose content based restrictions on speech in public forums

Answer 39

The government cannot impose content based restrictions on speech in public forums unless it satisfies strict scrutiny by showing the restrictions are necessary and narrowly tailored to achieve a compelling government interest

Question 40

Supremacy clause and taxing

Answer 40

The federal government is immune from any direct taxation by the states, including taxes on commercial activitites.

As a result, states may not impose taxes on the federal government, or any agencies or instrumentalities, without the express consent of congress

Question 41

Elections clause

Answer 41

State legislatures have the power to enact laws that regulate the time, place, and manner of congressional elections

BUT

The clause also grants congress the power to override those state laws by supplanting them with federal law

Question 42

Appointments clause

Answer 42

• Grants president power to appoint principal federal officers with senate advice and consent
• Senate approval not required for president to appoint inferior federal officers (officers who are supervised by principal federal officers)

Question 43

14th amendment and education

Answer 43

14th Amendment DP clause generally prohibits states from enacting laws that substantially impair parents’ rights to control their children’s upbringing and education.

This right is not absolute, and states may impose reasonable educational standards on schools without violating the DP clause

Question 44

Standard of review for ordinary burdens on voting

Answer 44

**Rational basis **review applies to ordinary (nondiscriminatory) burdens and require the challenger to prove that the regulation is not rationally related to a legitimate state interest

Question 45

Standard of review for severe burdens on voting

Answer 45

strict scrutiny applies to severe (discriminatory) burdens and requires the state to prove that its regulation is the least restrictive means of achieving a compelling state interest

Question 46

Things to consider when determining whether congress can regulate an activity

Answer 46

Whether
1. the activity is economic in nature
2. the regulation contains a jurisdictional element
3. congress made experss findings on the activity’s effect on interstate commerce
4. there is a strong link between the activity and that effect

Question 47

Does government licensing/funding trigger the state action doctrine?

Answer 47

No. Private actors are only treated as government actors when they perform a traditional government function or the government is significantly involved in their activitites. Government funding (however substantial) or licensing does not trigger this doctrine

Question 49

What are the quasi suspect classes?

Answer 49

Gender/sex and legitimacy

Question 51

Fundamental rights for 14th Amendment

Answer 51

• First amendment rights
• Voting
• Interstate travel
• Privacy

Pneumonic: FIRST VIP

Question 52

Discriminatory state taxes even when congress allows for that kind of law

Answer 52

When congress authorizes conduct that would otherwise violate the dormant commerce clause, states must still comply with other constitutional provisions. Promoting in state business by discriminating against out of state business is not a legitimate government interest and fails rational basis review

Question 53

What level of review are discriminatory state taxes subject to

Answer 53

Rational basis review – state tax must be rationally related to a legitimate state interest

Question 54

Congress revoking US citizenship

Answer 54

Congress cannot revoke the citizenship of any US citizen without their consent unless that citizenship was obtained by fraud or in bad faith

Question 55

Can states ever discriminate against citizens of other states or unduly burden interstate commerce?

Answer 55

Yes, when congress explicitly authorizes that conduct

Question 56

Who is a federal officer

Answer 56

A federal officer is one who
1. holds a continuing public office and
2. has significant discretionary authority to administer or enfoce laws

Question 57

How are federal officers appointed

Answer 57

Federal officers must be appointed by the president or in a manner otherwise consistent with the Art II appointment clause.

Under Art II appointment clause, congress cannot appoint federal officers because their participation in this function violates separation of powers

Question 58

Permissible 2A restrictions

Answer 58

• Banning unsually dangerous firearms
• Prohibiting open carry in certain areas
• Prohibiting possession by felons and mentally ill people
• Imposing conditions and qualifications on commercial sales

Question 59

What level of review applies to restrictions on 2A?

Answer 59

SCOTUS has never determine whether rational basis or strict scrutiny applies to restricctions on 2A rights. Instead, 2A restrictions must not interfere with a traditionally lawful purpose for possessing and using firearms

Question 60

Property clause

Answer 60

The property clause gives congress the complete power to dispose of and regulate federally owned land and territories. This includes the power to regualte private property that affects federal public land when that regulation is necessary to protect those lands

Question 61

Suspension clause

Answer 61

Under the suspension clause (in Art I), a person in federal custody can challenge their detention by filing a peition for writ of habeus corpus unless congress has explicitly suspended the writ.

Question 62

Who does suspension clause apply to

Answer 62

Persons in federal custody

Noncitizens classified and detained as enemy combatants in territories over which the US has sovereign control.

Question 63

Art III exceptions clause

Answer 63

Congress can modify SCOTUS’s appellate JDX unless modification would violate
- separation of powers doctrine
- other constitutional provisions (e.g., violating EPC by only allowing men to appeal their cases)

Question 64

Who bears the burden to establish that they have standing

Answer 64

The plaintiff in a matter

Question 66

Can states tax affiliates of the federal government (employees, contractors)?

Answer 66

Yes, affiliates must pay state taxes unless
- congress granted the affiliate immunity
- the tax discriminates against the federal government or the affiliate; or
- the tax substantially interferes with the affiliate’s federal purpose or duties

Question 67

When is the government not required to provide compensation after a taking?

Answer 67

Compensation is not required when the government destroys private property in response to a public peril.

Question 68

Can the federal government directly tax states?

Answer 68

No, 10th Amendment prohibits direct taxation from the feds to the states that unduly interferes with their essential functions

Question 69

Can the feds indirectly tax the states

Answer 69

Yes, the federal government can impose federal taxes on states indirectly through their affiliates (people doing business with state governments) so long as the taxes are nondiscriminatory against states or their affiliates

Question 70

When are laws about religion subject to strict scrutiny?

Answer 70

Strict scrutiny can be used when a law directly benefits or burdens a particular religion, or religion in general over nonreligion. When this test is used, a law is invalid unless government proves the law is necessary to achieve a compelling government interest

Question 71

Requirements of “one person one vote” principle

Answer 71

14th A EPC one person one vote principle requires populations in state legislative districts to be aproximately equal

Question 72

What deivations are permitted under one person one vote

Answer 72

A deviation of 10% or less between the populations of legislative districts is minor and does not violate the EPC absent evidence of discrimination

Question 73

Requirements for congress to impose an indirect tax

Answer 73

Congress can impose an indirect tax as long as they are
1. uniformly applied in every state where the taxed goods are found; and
2. reasonably related to revenue production

Question 74

Due process requirements when student is dismissed for academic reasons

Answer 74

A public college may dismiss a student without providing them with an opportunity to be heard, because decisions based on a student’s academic performance are not adversarial in nature and don’t require the tools of judicial decisionmaking

Question 75

Does right to free speech extend to public employees speaking within the scope of their employment?

Answer 75

NO! It does not extend to public employees when they speak pursuant to their official duties – i.e., within the scope of their employment

Question 76

Does the right to free speech extend to public employees who speak as private citizens?

Answer 76

The right to free speech extends to public employees who speak as private citizens about matters of public concern.

Question 77

When can government regulate the content of public employees speaking as private citizens on matters of public concern?

Answer 77

The government can regulate the content of that speech if its interest in efficient government function outweighs the free speech right.

Question 78

When can a person challenge a statute on its face?

Answer 78

People can challenge a statute on its face when that statute could be unconstitutionally applied to others not before the court. That challenge will succeed if the statute reaches a substantial amount of constutitonally protected conduct (i.e., it’s overbroad)

granted the person still needs to have standing

Question 80

Relationship between president and taxing and spending clause

Answer 80

The taxing and spending clause grants congress exclusive spending power, which allows it to require federal funds be spent as directed in duly enacted apportions statutes. The president must faithfully execute congress’s directed

Question 81

When does an assignee have standing to sue to enforce the rights of an assignor?

Answer 81

An assignee has standing to sue to enforce the rights of the assignor provided that
1. requirements for standing are met
2. assignment was made for ordinary purposes and in good faith

Question 82

Is standing required even when there is not a constitutional issue?

Answer 82

yes!!!! Art III standing is required whenever a federal court decides an actual case or controversy not just when constitutional rights are violated!!!!

Question 83

A state or local action that discriminates against interstate commerce is invalid unless…

Answer 83

Unless
- it furthers a legitimate, noneconomic state or local interst; or
- no nondiscriminatory alternative is available to achieve this interest

Question 84

What constitutes general welfare for the purposes of the taxing and spending clause

Answer 84

Any public purpose

Question 85

Does the property clause give congres the power to acquire land?

Answer 85

No, the property clause gives congress the power to dispose of and regulate federally owned land, not acquire that land. The taxing and spending clause is more appropriate for that purpose

Question 86

When can congress impose a direct federal tax?

Answer 86

Only when the tax is
- apportioned evenly (i.e., proportionately) among the states based on their population; and
- reasonably related to revenue production

Question 87

When does a federal law impliedly preempt state law?

Answer 87

A federal law will impliedly preempt state law when
- a conflicting state law makes it impossible or nearly impossible to comply with both laws (direct conflict); or
- a conflicting state law frustrates the accomplishment of the fedral law’s purpose (indirect conflict)

Question 88

Declaratory judgments and Art III

Answer 88

Art III’s case or controversy requirement prohibits federal courts from issuing declaratory judgments unless the dispute presents a real and immediate danger to a party’s interests.

Question 89

First amendment impact on publishing lawfully obtained private facts

Answer 89

The 1st Amendment shields the media from liability for publishing lawfully obtained private facts and other truthful information involving matters of private concern

Question 91

Doctrine of sovereign immunity

Answer 91

The doctrine of sovereign immunity shields the federal government from suits by private parties (or states or foreign governments) in federal court without congressional consent. This immunity extends to suits against federal officers for actions within their official capacities

Question 92

Impact of 11th amendment on federal officials

Answer 92

The 11th Amendment has to do with suing state officials, not federal officials in federal court for violations of state law while acting in their official capacities

Question 93

JDX of fed courts under Art III sec 2.

Answer 93

Cases or controversies that:
- fed question (arising under the constitution, laws, treaties)
- affecting foreign countries’ ambassadors, public ministers, consuls;
- involving admiralty and maritime JDX
- when US is a party
- between states, or a state and citizens of a different state
- between a state/its citizens and foreign states/citizens
- between citizens of diff states or citizens of diff states claiming lands under grants of diff states

Question 94

What does SCOTUS have original JDX over?

Answer 94

• all cases involving abmassadors, other public ministers, consuls
• cases where a state is a party

Question 95

can congress expand the original JDX of SCOTUS?

Answer 95

NO NO NO NO NO NO NO

Question 96

How can congress regulate wholly intrastate activity that doesn’t have a direct economic impact on interstate commerce

Answer 96

Congress can regulate intrastate activity that does not have a direct impact on interstate commerce when the “total incidence” of the acitvity in the aggregate substantially affects interstate commerce

subject to rational basis review standard

Question 97

When does a state statute discriminate against out of state commerce

Answer 97

A state statute discriminates against out of state commerce if it protects local economic interests at the expense of out of state competitors

Question 98

When may a statute that discriminates against out of state commerce be upheld

Answer 98

The statute may be upheld if the state can establish that
- an important local interest is being served; AND
- no other nondiscriminatory means are available to achieve that purpose

Question 99

What does a P need to show to prove that the DCC prohibits a certain state statute

Answer 99

The P must show either
- the statute discriminates against out of state commerce; or
- the statute places an undue burden on interstate commerce

one or the other – not both

Question 101

When will a government holiday display be upheld?

Answer 101

• Government holiday displays will generally be upheld unless a reasonable observer would conclude that the display is an endorsement of religion
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