Constitutional Law

Question 1

Scope of Federal Courts – limited jurisdiction to what types and what source in constitution

Answer 1

• Article III, Section 2 (scope of Federal Judicial power)

1. law-based jxns:
   - cases arising under the US constitution, federal laws, + treaties
   - cases of admiralty and maritime jxn
2. party-based jxns:
   - cases affecting ambassadors, public ministers, and consuls
   - controversies to which the US shall be a party
   - controversies between two or more states
   - cases btwn a state and citizens of another state; and
   - cases btwn citizens of different states (diversity of citizenship cases)

Question 2

The Eleventh Amendment provides state sovereign immunity– meaning the gov’t may not be sued without its consent

Answer 2

= Private individuals cannot sue states for money damages in any court (key word is money damages)

o Exceptions:
 Federal suits brought by one state against another state;
 Suits brought by the federal government against a state;
 Subdivisions of a state (e.g., cities, towns, and counties) do not have immunity;
 A private citizen may sue a state requesting an injunction;
 A state may consent to suit in federal court if it clearly waives its 11th Amendment immunity. The state must do so expressly and unequivocally; or
 The Enforcement powers permit Congress to create a private action for monetary damages when it involved state behavior regulated by the three post-civil war amendments (13th, 14th, or 15th Amendments)

EXAM TIP: When an 11th A. question comes up, be sure to carefully read the choices for money damages versus other types of remedies. If money damages and private individuals are involved, the lawsuit will not be permitted unless it involves the 13th, 14th or 15th Amendments

Question 3

Limitations on Jurisdiction of Federal Courts

Answer 3

• Article III, Section 2 limits the jxn of federal courts to “cases” and “controversies”
• Use the mnemonic RAMPS (to get into federal court, one must go up the RAMPS) – these are the tests for a case or controversy

Question 4

Standing (rampS)

Answer 4

• Injury in Fact to the person bringing the law suit: Plaintiff must show a direct and personal injury, actual or imminent, caused by the action that he is challenging.
• Causation: Injury was caused by the challenged action; and
• Redressability: Plaintiff must show that he will benefit from the remedy sought in the litigation and that the court can provide that remedy

Question 5

Mootness (raMps)

Answer 5

= if a controversy or matter has already been resolved, it will be dismissed as moot. The injury has gone away.

*The matter will NOT be dismissed as moot if the injury is ‘capable of repetition, yet evading review,’ meaning it is a practical impossibility for there to be adjudication or appellate review before the claims of the plaintiff become moot

Question 6

Ripeness (Ramps)

Answer 6

= bars consideration of claims before they have fully developed –> someone has to have experienced an injury or imminent harm

Question 7

Abstention (rAmps)

Answer 7

= a federal court may abstain, or refuse to hear, a particular case when there are undecided issues of state law presented
Two scenarios:
1. if the meaning of the state law is unclear
2. where a state court proceeding is going on, the federal court will abstain from hearing the same matter

Question 8

Two Exceptions re: Standing (rampS)

Answer 8

-traditional rule= a litigant lacks standing to assert the rights of 3rd parties not before the court

-Exceptions:
1.) Third Party Exception
Can raise the constitutional rights of a 3rd party where litigant himself has suffered injury and:
a.) a special relationship exists btwn 3rd party and litigant
b.) the 3rd party is unable or finds it difficult to bring suit on his own behalf

2.) Organization Exception
An association has standing to assert the claims of its members, if:
a.) the members would otherwise have standing to sue in their own right;
b.) the interest asserted is german to the association’s purpose; and
c.) neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit

Question 9

Political Questions (ramPs)

Answer 9

Federal courts cannot hear cases involving political questions. A political question is a matter that the Constitution assigned to another branch of government (executive or legislative) or that is incapable of a judicial answer. The Supreme Court set forth factors to determine if the political question doctrine applies. Two most important factors:
• Something in the Constitution suggests that ultimate decision-making authority is given to another governmental actor; and
• The required decision is political rather than legal in character.

Question 10

Jurisdiction of the Supreme Court

Answer 10

• Original jurisdiction over cases involving ambassadors, foreign diplomats, and states.
• Congress cannot enlarge or restrict the Supreme Court’s original jurisdiction.
• Appellate jurisdiction exists where the Constitution or a federal law is at issue.

Question 11

Adequate and Independent State Grounds rule (SCOTUS)

Answer 11

Although a state court decision may involve a federal question, if the state court judgment can be supported on an adequate and independent state ground, the Supreme Court will not take jurisdiction. To do so would be tantamount to rendering an “advisory opinion.” Applies only to the Supreme Court.

Question 12

Congress’s Commerce Power

Answer 12

Congress can regulate:

• channels of interstate commerce (highways, railroads, etc)
• instrumentalities of interstate commerce (cars, trucks, ships, etc)
• activities that “substantially affect” interstate commerce*
• to exercise its commerce clause power under the “substantially effects” test, Congress must show:
  1. that the regulated activity is ‘economic’ in nature; and
  2. that the regulated activity, in the aggregate, has a substantial effect on interstate commerce

Question 13

Spending power

Answer 13

Congress has the power to lay and collect taxes “to pay the Debts and provide for the common Defense and General Welfare of the United States”
[aka Congress’s power to tax and spend must be exercised for the ‘general welfare’ of the country

Question 14

War and Defense Powers

Answer 14

Congress may:

1. declare war
2. raise and support armies
3. provide and maintain a navy; and
4. organize, arm, and call forth a militia

Question 15

Investigatory Power

Answer 15

-no express power in constitution, but the Necessary and Proper Clause permits Congress to conduct investigations incident to its legislative power. -Congress’s investigatory power may extend to any matter within a ‘legitimate legislative sphere.’ –> very broad

Question 16

Fifth Amendment Takings Clause

Answer 16

-The 5th amendment provides that private property shall not be taken by the government for public use without just compensation.
-This prohibition also applies to the states through the Due Process Clause of the 14th Amendment.
o “Public use” = “public purpose” (easy standard to meet).

Question 17

Four Kinds of Takings (derived from 5th am. takings clause)

Answer 17

Four kinds of takings:
o 1.) Direct government appropriation: Where the government actually takes someone’s property.
o 2.) Regulatory taking: Where the government doesn’t take property, but imposes a regulatory requirement that is so onerous as to effectively amount to a taking.
Categories to determine whether a regulatory requirement amounts to a taking:
• The regulation requires the property owner to suffer some permanent physical invasion;
• The regulation deprives the property owner of all economically beneficial use to the property; or
• The government will balance the economic versus physical impact of the regulation on the property owner, as well as the duration and character of the government action.
o 3.) Temporary restrictions: Does not permanently deprive the owner of all economically beneficial uses of his land.
A court will look at both the dimensions of a property interest and the term of years.
o 4.) Conditional permits: A condition on the grant of a permit for land development.
Permissible if:
• there is a logical nexus between the condition and the governmental purposes; and
• there is rough proportionality between the impact on the proposed development and the governmental objectives served by the condition.

Question 18

Enforcement Powers

Answer 18

Congress has the power to enforce:
13th am= banning slavery
14th am= prohibiting the states from violating protections regarding due process, equal protection, and privileges and immunities
15th am= prohibiting the states from discriminating in voting rights

Question 19

Congress to enforce the post-civil war amendments….

Answer 19

• With respect to the 14th and 15th Amendments, Congress can only regulate states, not private individuals;
• with respect to state governments, such governments must have engaged in widespread violations of the Amendment; and
• the legislative remedy must be “congruent and proportional to” the violations.

Question 20

State immunity from federal law (10th am)

Answer 20

• The 10th amendment* provides that: “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
–> Anti-Commandeering Doctrine: the federal government can’t force states to act in their sovereign capacities (i.e., legislate or enforce laws).

• A state is immune from federal taxation if the tax is applied to unique state activities or essential governmental functions.

*The 10th Amendment is frequently a “red herring” wrong answer choice, except when the facts show the federal government “commanding” the states.

Question 21

Dormant Commerce Clause

Answer 21

=Where Congress has not enacted legislation, the states can regulate local transactions affecting interstate commerce
• if a state law discriminates on its face btwn in-state and out-of-state economic actors, the state must show that:
1. the reg serves a compelling gov’t interest
2. the reg is narrowly tailored to serve that interest

Exceptions:

• subject to Congress affirmatively authorizing states to legislate in that area
• market participant exception (states can discriminate btwn in and out-of-state businesses when state acts as a market participant)
• state taxation of interstate commerce is permissible unless it discriminates against or unduly burdens interstate commerce

Question 22

State Action requirement

Answer 22

Constitutional rights can be violated ONLY by government actors, not private actors.

Question 23

Exceptions to state action requirement

Answer 23

State action can be found in the actions of private actors when:

1, entwinement– private entity is carrying on activities traditionally and exclusively performed by the gov’t

2. entanglement– gov’t and private entity are so closely related that the action by the private party fairly can be treated as action by the gov’t
3. the 13th am. can be used to proscribe purely private acts of forced labor without the requirement of state action

Question 24

Supremacy clause

Answer 24

a federal law will supersede any state law with which it is in direct conflict

Question 25

types of affirmative action allowed

Answer 25

Two compelling state interests for affirmative action: (both must be narrowly tailored):

1. remedy the effects of past or present discrimination in a particular institution; and
2. achieving a diverse student body in an institute of higher ed

AA based on gender need only pass intermediate scrutiny
AA based on race must pass strict scrutiny

Question 26

Contract Clause

Answer 26

= “no state shall..pass any…law impairing the Obligation of Contracts”

• a private contract can be modified by the legislature under its POLICE POWER when it is necessary to:
  a. serve an important or legitimate public interest, and
  b. the regulation is a reasonable and narrowly tailored means of promoting that interest

Question 27

Establishment Clause of the 1st Amendment

Answer 27

o Rule (discriminatory legislation) = where a law prefers one religion or religious sect over others, strict scrutiny applies.
o Rule (neutral legislation) = where legislation or government program is neutral on its face, the court will apply a three-part test under Lemon v. Kurtzman. The law must:
(1) have a legitimate secular purpose,
(2) not have the primary effect of either advancing or inhibiting religion, and
(3) not result in an excessive entanglement of government and religion

Question 28

Due Process Clause

Answer 28

• The 5th (applies to fed gov’t) and 14th (applies to states) Amendments offer two kinds of protection:
o Procedural Due Process
o Substantive Due Process

Question 29

Procedural Due Process (PDP)

Answer 29

= Protects against governmental deprivation of “life, liberty, or property” without due process of law.
=To deprive someone of life, liberty, or property, the government must give:
• Notice; and
• Hearing.

Question 30

What counts as Life, liberty, and property? (PDP)

Answer 30

 “Liberty” = (very broad) Includes freedom from bodily restraint and physical punishment.
 “Property” = (narrower) If the state can take something away from a person for no reason at all, there is no property interest. There are generally property interests in the following:
• Public education
• Public employment (if fixed-term employment or can be fired only for cause)
• Welfare benefits
• Driver’s license
 “Life” = If the state is trying to execute someone it must provide due process of law (capital punishment).

Question 31

Analyzing a PDP claim (2 parts)

Answer 31

1. What you need to bring a PDP claim—
o	state action
o	deprivation of some right
	life interest
	liberty interest
	property interest

2. Then, weigh the below three elements to determine fairness in hearing procedures—
   • the private interest affected by government action
   • the risk of erroneous deprivation if current procedures are used (and the utility of added safeguards), and
   • the Government’s interest (including administrability, efficiency of process, etc.)

Question 32

Bill of Rights that cannot be asserted via the 14th Amendment Due Process Clause (aka do NOT apply to the states)

Answer 32

• 5th Amendment – right to indictment by grand jury; and

* 7th Amendment – right to a jury trial in civil cases.

Question 33

Substantive Due Process (SDP)

Answer 33

protects rights not specifically referenced by the Constitution’s text – rights considered “implicit in the concept of ordered liberty” (aka fundamental)

Question 34

Analyzing a SDP claim (2 parts)

Answer 34

1. What you need to bring a SDP claim—
   o state action
   o deprivation of fundamental right
2. Then, apply the right level of judicial review:
    At minimum, substantive due process requires that all legislation be rationally related to some legitimate government purpose (RATIONAL BASIS test)
   • burden is on the π to show either:
   (1) that the government interest being served is not
   legitimate, or
   (2) if the government’s interest is legitimate, that
   the legislation is nevertheless not rationally
   related to promoting it.
    However, if the substantive right asserted by the plaintiff is one that is “fundamental,” then the court will require that the legislation be narrowly tailored to achieve a compelling government interest. (STRICT SCRUTINY test)
   • burden is on the government to prove that denying the right both:
   o Protects a compelling gov’t interest
   o Is narrowly tailored to that interest

Question 35

Fundamental rights (SDP)

Answer 35

• Abortion– state may regulate during 1st trimester unless it imposes an undue burden on woman’s ability to make termination decision pre-viability
• Marriage
• Child-rearing
• Private education
• Possession of obscene material

-Right to travel– 14th Amendment Privileges or Immunities Clause allows citizens to travel freely from state to state and to set up residency in a new state.
The right to international travel is not absolute and may be subject to reasonable restrictions in the name of national security.

• Right to vote
• Family relations– The government cannot prohibit members of an extended family from living in a single household.

Others:

• Right to die (right to refuse medical treatment)
• Right to same-sex intimacy – rational basis w “teeth”

Question 36

Equal Protection (definition/source + steps)

Answer 36

=Under 14th am, no state can deny their citizens equal protection under the law!
(5th am. for federal gov’t)
-equal protection requires the government to justify when it discriminates.

For an equal protection question, identify:

(1) the type of discrimination;
(2) against whom; and
(3) apply the level of scrutiny attached to that discrimination against that particular group.

Question 37

EP: rational basis

Answer 37

When the text is facially neutral, but it has a disparate impact –> apply rational basis : the burden is on the plaintiff to show that the measure being challenged is not RATIONALLY RELATED to any LEGITIMATE governmental interest

Two Exceptions when [facially neutral AND:]

1. Intent to have a racially disproportionate effect (passed because of rather than despite its effect on a certain group of people), then it is intentional discrimination and will face strict scrutiny
2. If an outcome is so lopsided (such as to infer discriminatory intent), it will face strict scrutiny

o Applies to: age, disability, alienage if done by Congress
note: sexual orientation– the court seems to apply rational basis review with “teeth” to sexual orientation cases
o The government generally prevails when rational basis review is applied.

Question 38

EP: intermediate scrutiny

Answer 38

Rule: The government must show that the measure being challenged is SUBSTANTIALLY related to an IMPORTANT governmental interest.
o Applies to government discrimination regarding sex (laws that treat men and women differently) and illegitimacy.
Note- If there is a question with discrimination based on illegitimacy on the bar exam, it will probably be unconstitutional. This sort of discrimination serves no important governmental interest

Question 39

EP: strict scrutiny

Answer 39

Rule: The government must prove that the measure (being challenged) serves a COMPELLING government interest, and it is NECESSARY to further that interest.

 The government usually fails to prove its burden under strict scrutiny

Question 40

If π fits into a suspect class, automatically gets strict scrutiny

Answer 40

• Applies to classifications based on race, alienage, and national origin.
• Such laws will be presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest.

Question 41

Privileges or Immunities under the Fourteenth Amendment

Answer 41

• “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
• Very limited application and primarily includes the right to:
o Travel across state lines and establish residence in a new state;
o Petition Congress;
o Vote for federal offices;
o Assemble; and
o Enter public lands.
• Corporations are not protected

Question 42

Privileges and Immunities under Article IV, Section 2

Answer 42

• Sometimes referred to as the Comity Clause, Article IV, Section 2 provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
• Prohibits states from discriminating against non-residents (based upon the fact that they do not reside in the state) with respect to rights and activities that are fundamental to the national union.
o Invalid forms of non-resident discrimination:
 State statutes that require non-residents to pay a higher fee for commercial licenses;
 Commuter taxes that apply to non-residents, but not to residents;
 State statutes that only allow state residents to get abortions within the state; or
 State laws requiring employers to give hiring preference to state residents.
o Types of discrimination that have been upheld:
 State statute requiring non-residents to pay higher fees for recreational licenses than residents.
 When the purpose of discrimination is to preserve natural, state-owned resources.
• Test: The state can discriminate if it is substantially related to a substantial state interest.
• Corporations cannot assert these rights, as a corporation is not a citizen. A corporation can protect itself from such discrimination via the Dormant Commerce Clause