ConLaw

Question 1

State Action, Standing, Ripeness, Mootness

Answer 1

State Action: Plaintiff must show that the violation is attributable to government action, when a government entity does something. Generally, private action will not constitute government action unless they are essentially intertwined.

Standing. Standing is required for a plaintiff to bring a claim. Standing must find that there was an (1) injury-in-fact; (2) causation; and (3) redressability
i. Injury in fact is a concrete and particularized injury experienced by the plaintiff
ii. Causation occurs when the governmental action results in the harm to the plaintiff. This can be found be using a but-for test
iii. Redressability is the ability for the court to grant relief to the plaintiff.

Ripeness: A case is ripe for review when there is an actual harm or an immediate threat of harm.

Mootness: A case is moot if the dispute has ended or been resolved before review.

Question 2

Free Exercise Clause

Answer 2

The free exercise clause prevents the government from interfering with a person’s sincerely held religious beliefs. Sincerely held beliefs are not subject to reasonability but rather turn on whether the person sincerely believes in them. Religious beliefs are beliefs that are not political or philosophical in nature but rather bear the hallmarks of religion like: dogma about the afterlife, divine figures/symbols, holidays and traditions. However, religious conduct is not absolutely protected.

Government regulation that is generally applicable, and only incidentally interferes with religion, is subject to rational basis scrutiny. However, if the intent of the regulation was to interfere with religious conduct, it is subject to SS.

Question 3

Establishment Clause

Answer 3

The Establishment Clause requires that the government does not prefer any religion, or non religion, over the other. If the government regulation has a patent preference, it is subject to strict scrutiny. If however, the government regulation is facially neutral, it is subject to the “historical practices and understandings” test from Katzenbach (2022) that examines a religions historical practices in the context of the religion, the United States, and religion generally.

Question 4

Procedural Due Process

Answer 4

Protects the life, liberty, and property rights of people in the United States. In assessing if there had been a violation of the pDP clause, a court will first determine which right was deprived. Second, they will determine whether sufficient due process was afforded.

i. Liberty interests include fundamental rights (FVIP). Property rights are loosely defined and include almost any legitimate claim of entitlement, such as rights provided w/in an employment contract.
Right to Continued Government employment: Public employers must provide employees with due process protections before depriving their employees of a property interest int heir employment.
a. However, at will or probationary employees must be given assurances of continued employment to have a property interest
2. Right to Contract Terms/Right to Wages – Property Right takings: Protectable right in the term of contract for agreed upon wages and withholding was a taking,
3. First Amendment – Right to Exercise Free Speech Rights (Liberty Right): An “at-will” government employee cannot be fired for having engaged in speech protected by 1st A.

ii. Matthews test for what process is Due: (1) the private interest affected; (2) the government’s interest; and (3) the value of increased procedural safeguards and remedies, and risk of erroneous deprivation.

b. Procedural Due Process rights, typically require pre-termination notice and a post-termination hearing. Except for welfare benefits which require a pre-termination hearing.

Question 5

11th Amendment

Answer 5

The 11th Amendments immunizes state’s from suits from citizens. A citizen may only sue the state as an entity if they are a taxpayer alleging a claim on violation of the Establishment clause.

i. 11th Amendment: If a state official is named as the defendant, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary. No monetary damages.

Question 6

Commerce Clause

Answer 6

The Commerce Clause allows Congress to regulate all interstate commerce and the instrumentalities of interstate commerce. Congress may also regulate intrastate commerce under Wickard if the intrastate actions would have a substantial effect on interstate commerce in the aggregate.

Think, if Congress is doing anything and it isn’t taxing or spending, think CC.

Question 7

Non-Delegation Doctrine

Answer 7

Because Congress is vested with “all legislative powers” it usually may not delegate that power to any other branch of government. However, delegation of some power is allowed to the executive branch if there is an “intelligible principle”

Question 8

Commandeering

Answer 8

The Federal government may not require State officials to carry out tasks of the Federal government nor may the Feds require a state to pass legislation. However, through taxing and spending powers, Congress may encourage state action that it otherwise couldn’t compel

Question 9

Equal Protection

Answer 9

The equal protection clause of the 14th A provides that states will treat similarly situated individuals equally. To determine whether an equal protection violation has occurred, the classification being used will be scrutinized (SS, IS, RB).

Question 10

Taxing and Spending

Answer 10

Article 1 of the Constitution grants Congress the power to tax and spend to provide for the common defense and general welfare of the US. All duties and excises must be uniform throughout the US. The spending power is interpreted very broadly. Congress has power to spend for the “general welfare” and can use this power to accomplish regulation indirectly by conditioning federal funding

Question 11

Symbolic Speech

Answer 11

The freedom of speech includes speech that is expressive conduct. Regulations on symbolic speech must be: (1) within the power of the government; (2) an important government interest; (3) narrowly tailored to that interest; and (4) not solely for the purpose of speech regulation.

Question 12

First Amendment Speech & Regulation Restrictions (What can’t restrictions be)

Answer 12

The First Amendment guarantees the right to free speech and is applicable to the states through the 14th Amendment. Regulations of First Amendment Speech cannot be: (1) a prior restraint; (2) overbroad; (3) vague; or (4) unfettered discretion.

1. Prior Restraint: A prior restraint regulates speech in advance, unconstitutional, unless (1) particular harm can be avoided; (2) procedural safeguards for speaker; (3) narrowly drawn definite standards.
2. Overbroad: A law is overbroad when it prohibits protected and unprotected speech, regulating substantially more speech than necessary
3. Vague: A law is void for vagueness if it gives no reasonable notice as to what speech is protected.
4. Unfettered Discretion: A law that gives regulating officials unfettered discretion is void on its face. A regulation must define standards as to how to apply the law to prevent unfettered discretion over speech.

Question 13

First Amendment (Content Based & Neutral Restrictions)

Answer 13

Content-Based Restriction
Content-based restrictions are subject to Strict Scrutiny. Content-based restrictions are ones that prohibit specific content in communications rather than prohibiting speech generally. Does not apply if speech is unprotected

Content-Neutral Restriction
Content neutral regulation does not forbid communication of specific ideas but rather regulates the conduct associated with speaking such as the time, place, and manner (TPM) of the speech. The standard for content neutral regulations depends on the forum.
Forum
* Public forum/Designed Public Forum: regulation must be (1) content neutral; (2) narrowly tailored for significant government interest; and (3) leave open alternative channels of communication
* Non-public forum: Viewpoint neutral + reasonably related to legitimate interest (RB)

Question 14

Takings (Total)

Answer 14

Under the Takings clause, the government may take private land for a “public use” provided that they give the former owner “just compensation.” Public use is very broad and can be used for any public purpose, highway, military base, playground, etc. Just compensation means the FMV of the land when taken. A person must have a property interest in the land to bring a claim

Seizure of Property: Classic application of the Takings Clause is the seizure o private property for public use.

Per Se Taking – A regulation that results in a taking no matter what are either (1) one that results in a permanent physical occupation of the property; or (2) if there would be a permanent total loss of the property’s value

Question 15

Takings (Partial)

Answer 15

Regulatory Taking: Generally a governmental regulation that affects a property interest is not a taking. However, the following factors are considered: (1) the economic impact of the regulation; (2) extent it interferes with reasonable investment-backed expectations; and (3) the degree it will benefit society

Question 16

Dormant Commerce Clause

Answer 16

The Dormant Commerce Clause (DCC) is the mirror of the Congressional Commerce Clause. State’s may not burden interstate commerce. If a State law facially discriminates against out-of-state commerce it will only be constitutional if it: (1)was necessary for a important non-economic state interest; and (2) it must be narrowly tailored. If it is not patently discriminatory, the law is subject to the “undue burden” balancing test of burden on interstate commerce vs legitimate interest of state.

Market Participant Exception
The market participant exception applies if the state is acting as a market participant. If it is, discrimination for in-state or against out-of-state businesses is not a breach of the DCC.

Question 17

Privileges and Immunities (4th Amendment)

Answer 17

The Privileges and Immunities Clause requires that a state government does not discriminate against out-of-state residents for fundamental rights or essential activities (including commercial activities). The P&I clause does not apply to corporations. They can be valid if the state shows a substantial reason for the different treatment.

Question 18

Due Process Clause

Substantive

Answer 18

The Due Process Clause protects an individual who has suffered a harm to their life, liberty, or property rights. Substantive due process guarantees the fairness of the law and that laws will not be unreasonable nor arbitrary. If a fundamental right is involved, SS is applied. However, if it is not a fundamental right, like an economic right, RB is applied. The RB standard is that the law is valid if it there is a rational related to legitimate state interest.

Question 19

Organizational/Third Party Standing

Answer 19

Organizational Standing
An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization has not suffered an injury itself) if its members would have standing to sue in their own right and the interests at stake are related to the organization.

Third Party Standing
A third party has standing if (1) the plaintiff themselves has standing and either (a) there is a special relationship between the third party and the plaintiff ; or (b) the plaintiff would be unlikely to be able to assert it themselves.

Question 20

13th Amendment

Answer 20

The 13th Amendment prohibits involuntary servitude.

Question 21

Commercial Speech

Answer 21

Commercial Speech is protected by less than polticial speech. Can be regulated if (1) serves substantial government interest; (2) advances that interest; and (3) is narrowly tailored.