Constitutional Law

Question 1

What does the 11th Amendment prohibit?

Answer 1

(1) The citizens of one state or a foreign country from suing another state in federal court for $ damages or equitable relief; and
(2) Suits in federal court against state officials for violating state law.

Question 2

What some exceptions to the application of the 11th Amendment?

Answer 2

(1) Consent (state may consent);
(2) Injunctive relief (suing state official);
(3) Individual damages (suing state official); and
(4) Congressional authorization.

Question 3

Standing

Answer 3

(1) Injury in Fact;
(2) Causation;
(3) Redressability.

Question 4

When may a claimant, standing in her own right, also assert the rights of a 3rd party?

Answer 4

If:

(1) The 3rd party would experience difficulty or is unable to assert their own rights;
(2) There is a special relationship between the plaintiff and the 3rd party; or
(3) The plaintiff’s injury adversely affects the plaintiff’s relationship with the 3rd party.

Question 5

When may an organization bring an action on behalf of it’s members?

Answer 5

If:

(1) Its members would have standing to sue in their own right; and
(2) The interests at stake are germane to the organization’s purpose.

Question 6

Ripeness

Answer 6

The plaintiff must have experience a real injury or imminent threat thereof.

Question 7

Mootness

Answer 7

A case is moot if further legal proceedings would have no effect.

Exceptions:

(1) Capable of Repetition, Yet Evading Review
(2) Voluntary Cessation
(3) Class Actions

Question 8

Political Question

Answer 8

(1) The Constitution has assigned decision making on the matter to a different branch of government; or
(2) The matter is inherently not one that the judiciary can decide.

Question 9

Necessary and Proper Power (Congress)

Answer 9

Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.

Must work in conjunction with another federal power.

Question 10

Taxing Power (Congress)

Answer 10

Congress has the power to tax, and most taxes will be upheld if:

(1) They bear some reasonable relationship to revenue production; or
(2) Congress has the power to regulate the activity taxed.

Question 11

Spending Power (Congress)

Answer 11

Congress may spend to “provide for the common defense and general welfare.”

Question 12

Commerce Power (Congress)

Answer 12

Congress has the power to regulate all foreign and interstate commerce. Must regulate either:

(1) Channels of interstate commerce;
(2) Instrumentalities of interstate commerce and persons and things in interstate commerce; or
(3) Activities that have a substantial effect on interstate commerce.

Question 13

When will the Court uphold a Congressional regulation on INTRAstate commerce?

Answer 13

If:

(1) The regulation is of economic or commercial activity; and
(2) The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.

HOWEVER, if non-economic and non-commercial, the Court generally will not aggregate the effects and it will be upheld ONLY IF Congress can show a direct substantial economic effect on interstate commerce (high standard, generally unable to do).

Question 14

Delegation of Legislative Power

Answer 14

May be delegated, provided that:

(1) Intelligible standards are set to guide the delegation; and
(2) The power is not uniquely confined to Congress (like power to declare war)

Question 15

Domestic Powers (President)

Answer 15

(1) Reprieve or pardon all federal offenses, except in cases of impeachment;
(2) Appoint all officers of the US with advice and consent of Senate;
(3) Remove any executive appointee without cause and without Senate approval, except in cases of federal judges; and
(4) Veto any bill presented to her by Congress.

Question 16

Foreign Powers (President)

Answer 16

(1) Commander in Chief
(2) Treaties
(3) Executive Agreements

Question 17

Executive Privilege and Immunity (President)

Answer 17

President has a privilege to keep certain communications secret.

Present has absolute immunity from civil damages based on any action he took within his official responsibilities as President; however, there is no immunity for acts that allegedly occurred before taking office.

Question 18

Dormant Commerce Clause (DCC)

Answer 18

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not:

(1) discriminate against out of state commerce;
(2) unduly burden interstate commerce; or
(3) regulate wholly out of state activity.

Legislation that violates any of the above requirements is unconstitutional, UNLESS:

(1) State is market participant;
(2) State performing traditional government function; or
(3) Congress explicitly permits it.

Question 19

When may state action exist in cases of private parties?

Answer 19

When: (1) A private person carries on activities that are traditionally performed exclusively by the state; or (2) There are sufficient mutual contacts between the conduct of a private party and the government.

Question 20

Procedural Due Process

Answer 20

A fair process (notice and hearing) is required for a government agency to individually take a person’s life, liberty, or property.

Three-part balancing test:

(1) Importance of the individual’s interest that is being affected; and
(2) The value of specific procedural safeguards to that interest; against
(3) The government interest in fiscal and administrative efficiency.

Question 21

Strict Scrutiny

Answer 21

Government must prove that the regulation is the least restrictive means to achieve a compelling government interest.

Use for: Suspect Classes (race, ethnicity, national origin, alienage (if state law)).

Question 22

Rational Basis

Answer 22

Challenger must prove that the regulation is not rationally related to any legitimate government interest.

Use for: Age, disability, wealth, alienage (if federal law)

Question 23

Abortions

Answer 23

Before viability, a state may adopt a regulation protecting the mother’s health and the life of the fetus if the regulation does not place an undue burden on the woman’s right to obtain an abortion.

Question 24

Intermediate Scrutiny

Answer 24

Government must show that the classification is substantially related to an important government interest.

Use for: Women and non-marital children.

Question 25

Takings Clause

Answer 25

(1) Private property may be taken (2) for public use (3) with just compensation.

Question 26

Regulatory Taking (Takings Clause)

Answer 26

Factors in determining if a regulation constitutes a taking:

(1) The economic impact of the regulation on the property owner;
(2) The extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property; and
(3) Character of the regulation.

Question 27

Per Se Taking (Takings Clause)

Answer 27

(1) Permanent physical occupation of the property; or

(2) Permanent total loss of the property’s economic value.

Question 28

When may a local government exact promises from a developer without violating the Takings Clause?

Answer 28

If there is:

(1) An essential nexus between legitimate state interests and the conditions imposed on the property owner; and
(2) A rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development.

Question 29

Privileges and Immunities Clause

Answer 29

Prohibits one state from discriminating against the citizens of another state. However, discrimination against out of state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if:

(1) The out of state citizens either cause or are part of the problem that the state is attempting to solve; and
(2) There are no less restrictive means to solve the problem.

Question 30

Contracts Clause

Answer 30

Limits the ability of states to enact laws that retroactively impair contracts rights.

State legislation that substantially impairs an existing PRIVATE contract is invalid unless the legislation passes intermediate scrutiny.

State legislation that substantially impairs an existing PUBLIC contract is tested as above, but likely will receive stricter scrutiny.

Question 31

Ex Post Facto Laws

Answer 31

A law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner. This occurs when a statute:

(1) Makes criminal an act that was innocent when done;
(2) Prescribes greater punishment for an act than was prescribed when it was done; or
(3) Reduces the evidence required to convict a person of a crime from what was required when the act was done.

Question 32

Bill of Attainder

Answer 32

Legislative acts that inflict punishment on individuals without a judicial trial. Both state and federal governments are prohibited from passing bills of attainder.

Question 33

When may the government regulate symbolic acts?

Answer 33

If:

(1) The government has an important interest independent of the suppression of speech; and
(2) The incidental burden on speech is no greater than necessary to further that interest.

Question 34

Overbreadth Doctrine

Answer 34

If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid.

Question 35

Void for Vagueness Doctrine

Answer 35

A statute of regulation is void for vagueness if it does not put the public on reasonable notice as to what is prohibited.

Question 36

Prior Restraint

Answer 36

Regulation on speech that occurs before its expression. Presumed to be unconstitutional, unless:

(1) There is a particular harm to be avoided; or
(2) Procedural safeguards are provided to the speaker.

Question 37

Content-Based Restrictions

Answer 37

Presumptively unconstitutional to place burdens on speech because of its content, except for categories of unprotected speech.

Question 38

Content-Neutral Restrictions

Answer 38

Generally subject to intermediate scrutiny: (1) must advance important interest unrelated to the suppression of speech and (2) not burden substantially more speech than necessary.

Question 39

Conduct-Based Restrictions

Answer 39

Government has the power to regulate the conduct associated with speech, depending on the type of forum involve.

Question 40

Public Forums and Designated Public Forums (Conduct-Based Restrictions)

Answer 40

Public Forum: public property that has historically been open to speech-related activity (streets, sidewalks, and public parks).

Designated Public Forum: public property not historically open to speech-related activity, but has been open on a limited basis (school rooms open for after-school use).

Government may regulate speech in these spaces with reasonable time, place and manner regulations that:

(1) are content-neutral;
(2) are narrowly tailored to serve an important government interest; and
(3) leave open alternative channels of communication.

Question 41

Limited Public Forums and Nonpublic Forums (Conduct-Based Restrictions)

Answer 41

Limited Public Forum: Government property not historically linked with speech, but is open for specific speech (school gym hosting debate on community issue).

Nonpublic Forum: Government property not historically linked with speech and has not been opened for specific speech activity (military bases, schools while class in session, government workplaces).

Government may regulate speech in these spaces if the regulations are:

(1) viewpoint neutral; and
(2) reasonably related to legitimate government purpose

Question 42

Imminent Lawless Action

Answer 42

Speech can be restricted if it creates a clear and present danger or imminent lawless action. It must be shown that: (1) imminent illegal conduct is likely; and (2) the speaker intended to cause it.

Question 43

Fighting Words

Answer 43

True threats are not protected. Personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are insulting or annoying are not enough.

Question 44

Obscenity

Answer 44

Not protected speech. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:

(1) Appeals to the prurient interest in sex, using a community standard;
(2) Is patently offensive; and
(3) Lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard.

Question 45

Commercial Speech

Answer 45

Generally unprotected if commercial speech proposes unlawful activity or that is false, misleading, or fraudulent.

Any other regulation of commercial speech will be upheld only if it:

(1) Serves a substantial government interest;
(2) Directly advances that interest; and
(3) Is narrowly tailored to serve that interest.

Complete bans on truthful advertising of lawful products are very unlikely to be upheld due to a lack of narrow tailoring.

Question 46

Freedom of Association

Answer 46

Protects the right to form or participate in any group, gathering, club, or organization without government interference. However, government may infringe upon this right if they can satisfy strict scrutiny.

A person may only be punished or deprived of public employment based on association if that individual:

(1) Is an active member of a subversive organization;
(2) Has knowledge of the organization’s illegal activity; and
(3) Has a specific intent to further those illegal objectives.

Question 47

Free Exercise Clause

Answer 47

Prohibits the government from punishing someone on the basis of her religious beliefs or interfering with her exercise of religion.

The government can deny benefits or impose a restriction on someone based on her religious beliefs so long as there is a compelling interest. However, SCOTUS has never found an interest so compelling that it justifies such action.

Question 48

Establishment Clause

Answer 48

Compels the government to pusue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid, unless the action:

(1) Has a secular purpose;
(2) Has a primary effect that neither advances not inhibits religion; and
(3) Does NOT produce excessive government entanglement with religion.