Constitutional

Question 1

To be constitutional, a government restriction on speech in a public forum must…

Answer 1

… leave open alternative means of communication.

Question 2

In applying the “adequate and independent state grounds” limitation on the U.S. Supreme Court’s review of a state court decision, the U.S. Supreme Court will not review a state court decision when…

Answer 2

…the party claiming a federal right is successful under state law.

Question 3

Procedural due process only applies to. . .

Answer 3

. . . intentional governmental action and only when life, liberty, or property have been taken away.

Question 4

When the government regulates commercial speech, what must the regulation do?

Answer 4

Directly advance the governmental interest.

Question 5

Can Congress make laws that discriminate between citizens and non-citizens?

Answer 5

Yes, if the law is rationally related to a legitimate government interest.

The equal protection component of the Fifth Amendment requires federal laws based on U.S. citizenship to satisfy rational basis scrutiny.

Question 6

When does a federal law preempt a state law? (2 kinds of preemption)

Answer 6

Express preemption occurs when the Constitution or federal law explicitly bars state regulation. Implied preemption occurs when there is no room for state regulation (field), it is nearly impossible to comply with both laws (direct conflict), or the state law frustrates the federal law’s purpose (indirect conflict).

Question 7

When a public employee is fired for cause, what are the procedural due process requirements?

Answer 7

When a public employee can only be fired for cause, procedural due process generally requires that the employee receive (1) notice of any alleged misconduct, (2) a pre-termination hearing to respond to the allegation, and (3) a post-termination evidentiary hearing to determine if the dismissal was warranted.

Question 8

What level of scrutiny for equal protection cases? (i.e. one group being treated different than another group)

Answer 8

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

Question 9

If a church fires a minister for discriminatory reasons in violation of a state statute, is the church protected from civil liability?

Answer 9

YES.

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 ministerial exception protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.

Question 10

May a state prohibit felons from voting?

Answer 10

YES. Section 2 of the Fourteenth Amendment permits states to prohibit felons—even those unconditionally released from prison—from voting in elections.

Question 11

Can you sue a state official in federal court?

Answer 11

NO. The Eleventh 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 12

What is the Younger abstention doctrine?

Answer 12

The Younger abstention doctrine requires that a federal court abstain from issuing a declaratory judgment or injunction if doing so would interfere with a pending state criminal, or particular civil, proceeding that (1) involves an important state interest and (2) provides an adequate opportunity to litigate federal issues.

Question 13

When must a judge recuse for 14th Amendment due process grounds?

Answer 13

The Fourteenth Amendment due process clause requires that the government provide an opportunity to be heard before a neutral decision-maker. A judge must therefore 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.

Question 14

What’s the enclave clause?

Answer 14

For example, the enclave clause gives Congress plenary (i.e., exclusive) legislative power to govern the District of Columbia.

Question 15

Civil forfeiture of real property (gov’t seizes propery allegedly used in criminal activity) prior to providing notice and a hearing, the court must balance what three factors?

Answer 15

(1) the private interest affected by the deprivation

(2) the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and

(3) the government's interest, including the fiscal and administrative burdens that other safeguards would entail.

Question 16

Explain civil forfeiture of personal property without notice and hearing:

Answer 16

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.

Question 17

Can the media public info that was obtained illegally?

Answer 17

Yes IF:
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 18

Can a state tax the fed gov’t?

Answer 18

NO. The federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless Congress expressly consents.

Question 19

On what basis can a state regulate alcohol sales?

Answer 19

The Twenty-first Amendment grants states broad authority to regulate alcohol within their borders. This authority includes the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).

Question 20

Who can enact laws about congressional elections?

Answer 20

Under the elections clause, state legislatures have the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites). But the clause also grants Congress the power to override those state laws by supplanting them with federal law.

Question 21

Can a state ban write-in candidates on a ballot?

Answer 21

Yup. Must be rationally related to a legitimate state interest.

Question 22

Who can delegate an inferior federal officer?

Answer 22

Depends what Congress says. Default is pres w/senate approval, but The appointments clause grants Congress the power to delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.

Question 23

What level of scrutiny used for discrimination against fundamental rights? And what are the 4 fundamental rights?

Answer 23

Strict Scrutiny!

(First VIP)
FIRST Amendment
Voting
Interstate travel
Privacy

Question 24

What level of scrutiny used for discrimination against suspect classes? And what are the 3 suspect classes?

Answer 24

Strict Scrutiny!

Race/ethnicity
National origin
Citizenship

Question 25

What level of scrutiny used for discrimination against quasi-suspect classes? And what are the 2 quasi-suspect classes?

Answer 25

Intermediate Scrutiny!

Gender/sex
Legitimacy (marital vs non-marital child)

Question 26

What challenges to a state that taxes an out-of-state business more than an in-state?

Answer 26

1- dormant commerce clause (based on Article 1) (though Congress can explicitly authorize this kind of discrimination–there would still be a problem with…)

2-Equal protection (14th Amend.) challenges to discriminatory state taxes are subject to rational basis review. Although encouraging the growth of an industry within a state is permissible, promoting domestic (i.e., in-state) business by discriminating against nonresident competitors is unconstitutional.

Question 27

What criteria for Congress revoking citizenship?

Answer 27

Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship. But the Fourteenth Amendment limits this power by prohibiting Congress from revoking the citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.

Question 28

What is the Article IV, section 3 property clause?

Answer 28

Under the property clause, Congress has the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands.

Question 29

What is the suspension clause?

Answer 29

Under the Article I suspension clause, persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control.

Question 30

Is it constitutional for the population state legislative districts to differ by 8%?

Answer 30

Yes (under 10% is fine).

The Fourteenth Amendment equal protection clause “one person, one vote” principle requires the populations in state legislative districts to be approximately equal. A deviation of 10% or less between the populations of legislative districts is minor and does not violate the equal protection clause absent evidence of discrimination.

Question 31

When is a student being expelled from a public university entitled to a hearing?

Answer 31

Due process requires public colleges and universities to provide notice and a meaningful opportunity to be heard before dismissing a student for disciplinary reasons. However, due process does not require a public college or university to provide a meaningful opportunity to be heard when a student is dismissed for academic reasons.

Question 32

Can the gov’t restrict speech of a public employee if they are speaking as a private citizen on a matter of public concern?

Answer 32

Yes. . . When a public employee is speaking as a private citizen on a matter of public concern, the government can restrict that speech only if its interest in efficient government function outweighs the employee’s right to free speech.

Question 33

Explain adequate and

Answer 33

SCOTUS may exercise appellate jurisdiction over final state-court decisions that present a federal question—unless they are based on adequate and independent state grounds. Adequate grounds exist when state law fully resolves the matter, and independent grounds exist when no federal precedent was used to reach the decision.

Question 34

Can an assignee recover in a federal case?

Answer 34

Yes. An assignee has standing to sue to enforce the rights of the assignor provided that (1) the requirements for standing (injury-in-fact, causation, redressability) are met and (2) the assignment was made for ordinary business purposes and in good faith.

Question 35

Is it constitutional for a state or town to discriminate against interstate commerce?

Answer 35

Yes, UNLESS. . . .

A state or local action that discriminates against interstate commerce violates the dormant commerce clause unless (1) it furthers a legitimate, noneconomic state or local interest and (2) no nondiscriminatory alternative exists.

Question 36

Can Congress tax all real property interests in the country?

Answer 36

If!
It’s a direct federal tax, so . . .
Direct federal taxes comply with the taxing and spending clause so long as they are (1) apportioned proportionately among the states based on each state’s population and (2) reasonably related to revenue production.

Question 37

Strict scrutiny test?

Answer 37

–least restrictive means to achieve a COMPELLING gov’t interest

– fundamental right or suspect classification, such as race, ethnicity, national origin, or citizenship status

Question 38

Intermediate scrutiny test?

Answer 38

–law is substantially related to important gov’t interest

– quasi-suspect class: gender, legitimacy

Question 39

Rational basis review?

Answer 39

–rationally related to a legitimate gov’t interest

–age, everything not covered in higher levels of scrutiny

Question 40

If white flight is leaving inner city schools, can fed gov’t compel state to build magnet schools in city deliberately to attract white students from suburbs?

Answer 40

NO: unless there’s intentional segregation in the suburbs.

Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. A court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. If there is no such evidence, a federal district court can only remedy constitutional violations (i.e., race discrimination) that occurred within a particular school district. Hence, the court can issue orders that aim to keep white students in the district schools or to attract white students in private schools within the district to its public schools. However, the court cannot seek to attract white students from surrounding suburbs into the district without evidence of discrimination in the suburbs.

a federal court, in fashioning a remedy for a constitutional violation, may compel a state to expend public funds in a way that the state would not otherwise wish to do so.

Question 41

What’s teh Contracts Clause?

Answer 41

Contracts Clause of Article I, Section 10 prohibits state legislation from retroactively impairing the obligation of contracts.

does NOT apply to feds, who are free to cancel contracts when an administration changes etc

Question 42

Can the gov’t give direct money to religious schools?

Answer 42

YES: IF

Governmental financial assistance to religious institutions is permitted if the aid is secular in nature; used only for secular purposes; and, when the aid is distributed among secular and religious institutions, the distribution criteria are religiously neutral.

Question 43

When can the gov’t put up religious holiday decor?

Answer 43

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

Question 44

How is constitutionality of a state electoral regulation determined?

Answer 44

State electoral regulations must comply with the Fourteenth Amendment equal protection and due process clauses. The standard for reviewing such regulations depends on whether the burden imposed is ordinary (rational basis) or severe or discriminatory (strict scrutiny).

Question 45

When is a condition for a building permit constitutional vs a taking?

Answer 45

An exaction occurs when a local government conditions the issuance of a building or construction permit on a landowner’s promise to dedicate part of the property for public use. This amounts to a Fifth Amendment taking requiring just compensation unless the government establishes:

–an essential nexus – the imposed condition substantially advances a legitimate government interest and

–rough proportionality – the proposed development’s impact on the community is roughly proportional to the imposed condition’s burden on the landowner.

Question 46

Does a P worried about an ambiguous law with a long history of non-enforcement have standing to sue for an injunction?

Answer 46

NO. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. For a case to be “ripe” for litigation, the plaintiff must have experienced a real injury (or imminent threat thereof). Hence, if an ambiguous law has a long history of non-enforcement, a case challenging that law may lack ripeness.

Question 47

What’s the one exception for total civil immunity for a sitting judge?

Answer 47

LACKING JURISDICTION.

A judge is absolutely immune from civil liability for damages resulting from her judicial acts unless it is clear that the judge did not have jurisdiction.

Question 48

What’s the 13th Amendment do?

Answer 48

The Thirteenth Amendment (1) prohibits all government and private entities from engaging in slavery or involuntary servitude and (2) empowers Congress to enact legislation that eliminates slavery and involuntary servitude.

Question 49

In a Congressional investigation, can a subpoeanaed witness who fails to appear be cited for contempt?

Answer 49

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 50

What does Section 5 Enabling Clause of the Fourteenth Amendment permit Congress to do?

Answer 50

The Section 5 Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment, as long as there is “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. Congress may override state government action that infringes upon Fourteenth Amendment rights if the “congruence and proportionality” test is satisfied, but it may not regulate wholly private conduct under this amendment.

Question 51

Is there a federal equal protection clause?

Answer 51

There is no federal equal protection 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 of the Fourteenth Amendment. However, this only means that discrimination by the federal government is subject to the same standard as discrimination by the states—it does not give Congress the power to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment.

Question 52

If you got convicted of a fine, although the charge COULD’VE lead to jail time, and you weren’t given right to have counsel, has your Sixth Amendment right been violated?

Answer 52

NO. The right to counsel exists only when the defendant is actually sentenced to incarceration, regardless of the maximum length of the sentence that may be imposed for the crime.

Question 53

Does a treaty trump state law?

Answer 53

Only if it’s self-executing or has been implemented by legislation. Under the Supremacy Clause, a state is required to follow federal law when it conflicts with state law. A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation. The President, acting on his own, cannot implement such a treaty.

Question 54

11th Amendment is about what?

Answer 54

Sovereign immunity

Question 55

what are the main exceptions to sovereign immunity?

Answer 55

• consent
• Congressional authorization
• injunctive relief (named fed official) if state law contradicts fed law
• local government not barred
• Bankruptcy Court that impacts state finances is fine

Question 56

When does a taxpayer have standing to sue?

Answer 56

Usu not, BUT A taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause.

Question 57

Is it unconstitutional for a public university to require its students to pay a fee to support student organizations?

Answer 57

Nope, this is a carve out where otherwise it would be impermissible compelled speech. The funds do have to be allocated content-neutral.

Question 58

When can the gov’t regulate the private speech of a public employee?

Answer 58

Only when govt’s interest in efficient government function outweighs the employee’s free speech right

Question 59

What is a bill of attainder?

Answer 59

a legislative act that inflicts civil or criminal punishment on specified individuals without a trial. It’s unconstitutional b/c Article 1.