Con Law Rule Statements

Question 1

A taxpayer has standing when

Answer 1

A taxpayer has standing when the taxpayer’s suit (1) challenges legislation enacted under Congress’s taxing and spending power and (2) alleges a violation of a specific constitutional limitation on that power (i.e., the establishment clause).

Question 2

Article III of the Constitution limits the jurisdiction of federal courts to actual cases or controversies WHICH MEANS -

Answer 2

An actual case or controversy exists when a dispute between adverse parties is capable of judicial resolution—i.e., ripe for adjudication. A suit is ripe when the plaintiff has suffered actual harm or an immediate threat thereof. But a suit based on potential future harm is unripe and should be dismissed.

Question 3

Commerce Clause gives congress to regulate what -

Answer 3

The commerce clause gives Congress broad regulatory authority over most activities involving two or more states. This includes the power to regulate: the channels of interstate commerce (e.g., airports), the instrumentalities of interstate commerce (e.g., planes), people and things moving in interstate commerce (e.g., commercial shipments) and in-state activities that, singly or in the aggregate, substantially affect interstate commerce (presumed when activity is economic in nature).

Question 4

How does the 10th Amendment limit the Commerce Clause power

Answer 4

the Tenth Amendment limits this power by prohibiting Congress from requiring state or local governments to (1) enforce a federal law or (2) enact a state or local law.

Question 5

What power does the Taxing & Spending clause give congress

Answer 5

The taxing and spending clause gives Congress the broad power to spend for the general welfare—i.e., for any public purpose.

Question 6

The Article IV privileges and immunities clause (i.e., the comity clause) prohibits states from –

Answer 6

The Article IV privileges and immunities clause (i.e., the comity clause) prohibits states from discriminating against citizens of other states by denying them a right of state citizenship. This includes the right to practice a commercial trade or business—but not to pursue a recreational activity.

Question 7

When does a physical taking occur under the 5th Amendment

Answer 7

A physical taking occurs when the government (or a third party authorized by the government) permanently and physically occupies private property—regardless of the public interest it may serve.

Question 8

The 5th Amendment bars the gov’t from taking private property unless –

Answer 8

The Fifth Amendment takings clause, which is applicable to the states through the Fourteenth Amendment due process clause, bars the government from taking private property unless (1) the taking is for a public use and (2) the owner receives just compensation—i.e., the property’s fair market value.

Question 9

What does the dormant commerce clause stop states from doing –

Answer 9

The commerce clause gives Congress broad power to regulate interstate commerce. The negative implication of this clause (i.e., the dormant commerce clause) is that states cannot unduly burden interstate commerce. An undue burden can arise from a discriminatory law—i.e., a law favoring in-state over out-of-state economic interests—or a nondiscriminatory law. Under the Pike balancing test, a nondiscriminatory law will be upheld unless the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.

Question 10

Under the state-action doctrine, a private actor qualifies as a government actor when

Answer 10

The Constitution generally only protects against wrongful conduct by the government, not private persons. As a result, government action is necessary to trigger constitutional protections.

Under the state-action doctrine, a private actor qualifies as a government actor when

(1) the private actor performs a traditional government function or

(2) the government is significantly involved in the private actor’s activities. Significant involvement exists when the government: has a mutually beneficial relationship with the private actor (e.g., joint venture), creates a nexus by affirmatively facilitating or authorizing private action (e.g., through a police officer acting under color of law) or is pervasively intertwined in the private actor’s management or control.

Question 11

5th Amendment right to procedural due process requires -

Answer 11

The Fifth Amendment right to procedural due process requires the federal government to follow certain procedures when it deprives a person of life, liberty, or property. These procedures include giving persons: notice of the charges, proceedings, or other actions against them and a meaningful opportunity to be heard by a neutral decision-maker.

Question 12

What do substantive due process principles require -

Answer 12

Substantive due process principles are based upon the idea that laws should be reasonable and not arbitrary. As a result, states cannot deprive individuals of life, liberty, or property without adequate justification—even if adequate procedures are employed. The required level of justification depends on whether the law deprives the individual of: an ordinary right – under the rational basis test, the law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest or a fundamental right – under the strict scrutiny test, the law is presumed invalid until the government shows that the law is necessary to achieve a compelling government interest.

Question 13

Public employee is entitled to procedural due process when

Answer 13

A public employee is only entitled to these procedures if the employee has a legitimate property interest in his/her employment. This exists when the employee (1) has an ongoing employment contract, (2) can only be fired for cause, or (3) receives assurances of continued employment.

Question 14

What does the free exercise clause guarantee and prohibit -

Answer 14

The free exercise clause of the First Amendment, applicable to the states through the Fourteenth Amendment, guarantees the freedom to believe in any religion or no religion at all. This clause prohibits government interference with or discrimination against sincere religious beliefs or conduct. As a result, the government may determine whether a professed religious belief is sincere—but not whether that belief is reasonable or true.

Question 15

Ministerial exception is

Answer 15

The First Amendment free exercise clause prohibits government interference with a religious organization’s right to shape its faith and mission. As a result, the Supreme Court has recognized the ministerial exception, which protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles. This exception applies to any employee whose primary function is to advance the organization’s religious mission (e.g., pastor, parochial school teacher).

Question 16

Statute discriminates on gender or legitimacy -

Answer 16

A state statute that treats similarly situated persons differently may be challenged under the equal protection clause of the Fourteenth Amendment. The statute will be deemed constitutional only if there is adequate justification for the alleged discrimination. A statute that discriminates based on gender or legitimacy (i.e., quasi-suspect classes) is presumptively invalid unless it survives intermediate scrutiny. This standard of review requires that the government prove that the statute is substantially related to an important government interest.

Question 17

When can a state aid a religious org -

Answer 17

The establishment clause of the First Amendment, as applied to the states through the Fourteenth Amendment, prohibits the government from expressing a preference for a particular religion (or for religion over nonreligion) by participating in or aiding religious affairs. But the government may engage in conduct that indirectly aids a religious organization if that conduct comports with historical practices and understandings of the establishment clause.

Question 18

1st Amendment Content Based Restrictions -

Answer 18

The First Amendment free speech clause protects the right to freely communicate and receive information and ideas. To ensure such protection, content-based restrictions on speech are presumptively unconstitutional and subject to strict scrutiny. This means that the government can restrict speech based on what is being said (i.e., its messages or ideas) only if it can prove that the restriction is necessary and narrowly tailored to achieve a compelling governmental interest—a nearly impossible task.

Question 19

How to rebutt federal laws on US citizenship

Answer 19

Under Article I of the Constitution, Congress has plenary (i.e., exclusive) authority over immigration and naturalization, so federal laws based on U.S. citizenship are presumptively constitutional. To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.

Question 20

Supremacy clause - when does federal law impliedly preempt

Answer 20

The federal government and states can regulate the same subject matter. But the Article VI supremacy clause renders a state law void when a federal law expressly or impliedly preempts it.

Implied preemption occurs through: field preemption – when Congress intended to completely occupy a particular field by legislating so thoroughly that it left no room for supplementary state regulations, direct conflict preemption – when it is impossible or nearly impossible to comply with both federal and state law or indirect conflict preemption – when the state law frustrates the purpose of the federal law.

Question 21

What procedures is a public employee entitled to (if any see other card “when a public employee is entitled to due process”)

Answer 21

Since a public employee who can only be terminated for cause has a property interest in such employment—and termination is a serious deprivation of that interest—due process requires that the employee receive: notice of his/her alleged misconduct, a pre-termination opportunity to respond to that allegation and a post-termination evidentiary hearing to determine if the termination was warranted.

Question 22

When does a regulatory taking occur

Answer 22

A regulatory taking occurs when the government: substantially restricts the use of private property (based on the totality of the circumstances) or deprives an owner of all economically beneficial use of the property but the owner retains possession. When this occurs, the government must justly compensate the owner for the property’s fair market value pursuant to the Fifth Amendment—as applied to state and local governments through the Fourteenth Amendment.

Question 23

Civil laws that impair an ordinary right are tested under –

Answer 23

The Fourteenth Amendment substantive due process clause prevents states from depriving persons of life, liberty, or property without adequate justification. Civil laws that retroactively impair an ordinary right—e.g., the right to raise the statute of limitations as a defense—must undergo rational basis scrutiny. Under this test, the law is presumed valid until the challenger shows that the law’s retroactive application has no rational relation to any legitimate government interest.

Question 24

When can the gov’t interfere with a persons right to associate

Answer 24

The First Amendment protects against government interference with a person’s right to associate with any group or organization. But since this right is not absolute, the government can punish (i.e., deny public employment to or criminally prosecute) persons who: are active members of a subversive organization, know of the organization’s illegal objectives and specifically intend to further those objectives.

Question 25

To have standing you must show

Answer 25

A federal court will not hear a case unless the plaintiff has standing—i.e., a personal stake in the outcome of the case. To have standing, the plaintiff must allege the following three elements: injury-in-fact – the plaintiff suffered concrete and particularized harm or an immediate threat thereof, causation – that harm was caused by the defendant’s challenged action and redressability – a judicial decision in the plaintiff’s favor will likely remedy the harm. A generalized grievance shared by many or all citizens will not suffice.

Question 26

Does an assignee have standing?

Answer 26

When the plaintiff is an assignee, he/she steps into the shoes of the assignor and assumes all of the assignor’s contractual rights. As a result, an assignee has standing to sue to enforce the rights of the assignor provided that the assignment was made for ordinary business purposes (e.g., debt collection) and in good faith.

Question 27

Discrimination based on wealth

Answer 27

State laws that discriminate against individuals based on wealth (e.g., ability v. inability to pay a court fee) can be challenged under the Fourteenth Amendment equal protection clause. Since an individual’s wealth is not a suspect class or quasi-suspect class, such laws are generally subject to rational basis scrutiny and upheld. However, courts will depart from this test and apply strict scrutiny when a state law prohibits the exercise of a fundamental right (e.g., the right to appeal) based on an individual’s wealth. Under strict scrutiny, a discriminatory statute is unconstitutional unless it uses the least restrictive means (i.e., is necessary) to achieve a compelling government interest.

Question 28

Under due process a judge must recuse himself when -

Answer 28

The Fourteenth Amendment due process clause requires that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property. As a result, a judge must recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists. A failure to do so violates due process.

Question 29

Civil Forfeiture actions personal property vs real property

Answer 29

In civil forfeiture actions, the government deprives an individual of his/her property interest by seizing property allegedly used in criminal activity. As a result, procedural due process generally requires that the government provide reasonable notice of the seizure and a meaningful opportunity to be heard before a neutral decision-maker.

However, personal property may be seized prior to providing notice and a hearing when: the seizure serves a significant government interest, that interest would be frustrated by advance notice of the seizure and the seizure is performed by the government.

To determine whether real property may be seized by the government prior to providing notice and a hearing, the court must balance three factors: 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 procedural safeguards and the government’s interest, including the fiscal and administrative burdens that other safeguards would entail.

Question 30

State laws imposing citizenship reqs

Answer 30

State laws imposing citizenship requirements are discriminatory because they deny resident noncitizens benefits or opportunities that are generally available to U.S. citizens. As a result, these laws can be challenged under the Fourteenth Amendment equal protection clause. And since citizenship is a suspect class, these laws are typically unconstitutional unless they survive strict scrutiny. This requires the state to prove that the law is necessary (i.e., the least restrictive means) to achieve a compelling state interest.

Question 31

1st Amendment - lawfully obtained private facts/info involving matters of public concern

Answer 31

The First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts (e.g., crime victim’s identity) and other truthful information involving matters of public concern (i.e., newsworthy events). This amendment also shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if: the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did.

Question 32

Non-delegation doctrine/when you can delegate

Answer 32

The nondelegation doctrine prohibits Congress from delegating its exclusive legislative powers (e.g., making or repealing laws). But Congress can delegate its incidental powers (e.g., rule-making authority) to agencies in the executive branch if it provides an intelligible principle to guide the agency—i.e., a clear statement defining: the policy Congress seeks to advance, the agency to carry out that policy and the scope of that agency’s authority.

Question 33

Supremacy clause

Answer 33

Under the supremacy clause, the federal government is immune (i.e., exempt) from any direct taxation by the states—including taxes on its commercial activities. As a result, states may not impose taxes on the federal government, or any of its agencies or instrumentalities, without the express consent of Congress.

Question 34

How to challenge an electoral regulation from a state -

Answer 34

States may regulate their own elections by requiring voters and candidates to abide by certain requirements. But these regulations must comply with the First Amendment and the Fourteenth Amendment equal protection clause, which together secure an individual’s right to vote and freely associate—e.g., the right to access the ballot.

If an electoral regulation is challenged under either constitutional provision, the standard for evaluating that regulation depends on the severity of the burden imposed. A court will apply either: rational basis review – applies to reasonable, nondiscriminatory burdens and requires the challenger to prove that the regulation is not rationally related to a legitimate state interest or strict scrutiny – applies to severe or discriminatory burdens and requires the state to prove that its regulation is the least restrictive means of achieving a compelling state interest.

Question 35

A law that favors in state vs out of state interests will be deemed unconstitutional unless

Answer 35

A discriminatory state law—i.e., one that favors in-state over out-of-state interests—will be deemed unconstitutional unless the state proves that: the law furthers an important or legitimate noneconomic state interest (e.g., health, safety) and there is no reasonable, nondiscriminatory alternative to achieve that interest.

Question 36

What restrictions on firearms are permissible

Answer 36

The Second Amendment—applicable to states and municipalities through the Fourteenth Amendment due process clause—generally prohibits government interference with an individual’s right to possess and use firearms for a traditionally lawful purpose (e.g., self-defense in one’s home).

However, this right is not absolute. SCOTUS has stated that certain government restrictions on firearms are permissible, including: banning unusually dangerous firearms (e.g., grenades), imposing conditions and qualifications on commercial sales of firearms, forbidding the possession of firearms by felons and mentally ill individuals and prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.

Question 37

Laws that discriminate based on age –

Answer 37

Laws that make classifications based on age are reviewed under the rational basis standard, a test of minimal scrutiny. A law satisfies the rational basis standard if it is rationally related to a legitimate governmental interest. It is not required that there actually be a link between the means selected by the state and a legitimate state objective. However, the legislature must reasonably believe there is a link. Laws are presumed valid under this standard, and the burden is on the challenger to show that a law is arbitrary or irrational.

Question 38

When can a state tax a federal gov’t affiliate

Answer 38

The supremacy clause immunizes the federal government, including its agencies and instrumentalities, from state and municipal taxation unless Congress consents. But states can tax the federal government’s affiliates, including persons or entities employed by or doing business with the federal government (e.g., contractors). This is true even if the cost of the tax is ultimately passed on to the federal government. As a result, an affiliate must pay these taxes unless: Congress has 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—e.g., when a high tax burden makes it impossible for the affiliate to accomplish its federal functions.

Question 39

Law that expressly impacts religion –

Answer 39

The First Amendment establishment clause, applied to the states through the Fourteenth Amendment, compels government neutrality toward religion. Challenges brought under this clause are generally reviewed under the historical test. But courts may forego this test and apply the more stringent strict scrutiny test when the law expressly impacts religion (e.g., religious organizations). Under strict scrutiny, the law is invalid unless the government proves that the law is necessary to achieve a compelling government interest.

Question 40

Equal voting power under the 14th Amendment =

Answer 40

The Fourteenth Amendment equal protection clause ensures that each citizen is given equal voting power (i.e., one person, one vote) by requiring state legislative districts (e.g., state senate districts) to have largely equal populations. This “one person, one vote” principle means that the populations in each voting district must be approximately equal. A deviation of 10% or less between the populations of legislative districts is considered minor and does not violate the equal protection clause absent evidence of discrimination.

Question 41

Congress can pass an indirect tax so long as

Answer 41

The Article I, Section 8 taxing and spending clause gives Congress plenary (i.e., exclusive) power to raise federal revenue by imposing and collecting taxes. This allows Congress to impose an indirect tax (e.g., sales tax) so long as the tax is: imposed identically in every state where the taxed goods are found (i.e., geographically uniform) and reasonably related to revenue production (i.e., no provision extraneous to tax purposes).

Question 42

Gov’t employees + free speech –

Answer 42

The First Amendment right to free speech, applied to the states through the Fourteenth Amendment, does not extend to public employees speaking pursuant to their official duties (i.e., within the scope of employment). But this right does extend to public employees who, as here, speak as private citizens about matters of public concern (e.g., police misconduct). However, the government can regulate the content of that speech if its interest in efficient government function outweighs the employee’s free-speech right.

Question 43

When can gov’t impose a direct tax

Answer 43

The taxing and spending clause gives Congress plenary (i.e., exclusive) power to raise federal revenue by imposing taxes. But Congress can impose a direct federal tax (e.g., a tax on real property) only if it is: apportioned evenly (i.e., proportionately) among the states based on each state’s population and reasonably related to revenue production (i.e., no provision extraneous to tax purposes).

Question 44

Commercial Speech test -

Answer 44

Commercial speech (i.e., advertising and similarly economically oriented expression) is entitled to an intermediate level of First Amendment protection. Restrictions on commercial speech are reviewed under a four-part test. First, the commercial speech must concern lawful activity and be neither false nor misleading. Second, the asserted governmental interest must be substantial. Third, the regulation must directly advance the asserted interest. Fourth and finally, the regulation must be narrowly tailored to serve that interest; this means there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.

Question 45

Doctrine of abstention & Younger abstention doctrine

Answer 45

Under the doctrine of abstention, a federal court may abstain from deciding a claim when strong state interests are at stake. Under the Younger abstention doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute.