Constitutional law

Question 1

Justiciability

Answer 1

Whether a lawsuit is capable of judicial resolution as a case or controversy. Includes:

• No advisory opinions
• Must be ripe
• Must not be moot
• Must have standing

Question 2

Advisory opinions

Answer 2

Courts may not render advisory opinions which lack:

• An actual dispute between adverse parties, or
• Any legally binding effect on the parties

Question 3

Ripeness

Answer 3

Ripeness - too early

Rule: Federal courts may only decide controversies that are ripe for judicial review

• Pre-enforcement review of laws are generally not ripe, unless
  1) there would be substantial hardship in the absence of review
  2) issues and record are fit for review

Question 4

Mootnees

Answer 4

mootness - too late

Rule: Federal courts may only decide live controversies - plaintiff suffers ongoing injury
Live if: In suit for injunctive or declaratory relief, challenged law or conduct continues to injure; or if in suit for damages, plaintiff hasn’t been made whole yet

Exceptions to ripeness exception - if injury has passed, not moot if:

• Injury is capable of repetition yet evades review because of inherently limited duration
• Defendant voluntarily ceases challenged activity, but may restart at will, or
• In class actions, one plaintiff suffers ongoing injury

Question 5

Standing

Answer 5

Plaintiff must have standing to sue

Standing requirements are:

1. Injury
2. Causation
3. Redressability

Question 6

Standing - Injury requirements

Answer 6

Standing: Any harm that is concrete and particularized; must have already occured or will imminently occur
- Cannot include ideological objections or general tax payer grievances (unless taxpayer challenge to own tax liablity or congressional spending in violation of the Establishment Clause)

Question 7

Third party standing exceptions

Answer 7

Usually, the injury must be personally sufferd by the plaintiff rather than those not before the court. Exceptions include third party standing for:

1. Close relationship - Must have:
   - Plaintiff and third party injured
   - 3rd party unable or unlikely to sue
   - Plaintiff can adequately represent third pardy
2. Organizations on behalf of members - Must have:
   - Organization and members have standing
   - Members injury related to purpose of organization
   - Member’s participation is not required - not seeking individualized damages
3. Free speech overbredth claims - Party whose speech can be censored sues on behalf of those whose speech cannot - requires:
   - Substantial overbredth in terms of law’s legitimate to illegitimate sweep
   - Not commercial speech

Question 8

Standing and causation

Answer 8

Causation: Plaintiff must show that the injury is fairly traceable to the defendant

Question 9

Standing and redressability

Answer 9

Plaintiff must show that a favorable court decision can remedy the harm (e.g. through money damages or an injunction)

Question 10

Sovereign immunity - 11th amendment and federalism

Answer 10

The 11th amendment bars states from being sued in federal and state courts (and agencies)

Exceptions:

1. If the state has waived soverign immunity
2. If the plaintiff suing the state is another state or the federal government
3. If the state is being sued in bankruptsy proceedings
4. If there is clear abrogation by Congress under 14th amendment powers to prevent discrimination

State officers are not barred from being named in lawsuits for injunctive relief or money damages from their own pockets

Local governments may be sued in any case

Question 11

Supreme Court review - final judgment rule

Answer 11

SCOTUS only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special situations,) a three judge district court

Question 12

Supreme court review and independent and adequate state grounds

Answer 12

SCOTUS will not review a federal question if the state court decision rests on independent (seperate) and adequate (sufficient) state law ground

IASG exists if the outcome would be the same regardless of how the federal question is decided

Otherwise, it would be an adivsory opinion

Question 13

Federal legislative power

Answer 13

Unlike states, Congress has no general police power to pass laws (except on federal land, Indian reservations, and in D.C.), so Congress is limited to enumerated powers

Question 14

Necessary and proper clause

Answer 14

not a basis of legislative power

allows congress to choose any rational means to carry out an enumerated power, so long as means not prohibited by the Constitution

Question 15

Enumerated powers

Answer 15

Citizenship, bankruptcy, federal property, patents and copyright, post offices, coining money, territories, and DC., declaring war, raising and supporting armies, providing and maintaining navy, taxing and spending powers, commerce powers

Question 16

Enumerated powers - Taxing and spending

Answer 16

Congress may tax and spend to provide for the general welfare

Includes: Any public purpose not prohibited by the Constitution, even if not within an enumerated power

Congress can place strings or conditions on spending, but they must relate to the purpose of spending and must not violate the Constitution
- They cannot be unduly coercive

Question 17

Enumerated powers - Commerce power

Answer 17

Rule: Congress may regulate commerce with:

• Foreign nations
• Indian tribes
• Among states

Interstate commerce: Includes:

1. Channels of interstate commerce - highways, waterways, telephone lines, internet
2. Instrumentalities of interstate commerce - Planes, trains, automobiles, persons
3. Substantial effect on interstate commerce in the aggregate - even purely local activities

Limits on interstate commerce:

• Noneconomic activity in area traditionally regulated by the states
• Compelling participation in commerce, even if lack of participation substantially affects interstate commerce

Commerce clause power allows Congress to indirectly ban PRIVATE discrimination
- In contrast, Congress may directly ban STATE discrimination under its 14A power to enforce the guarantee of equal protection

Question 18

Delegation of power

Answer 18

Congress may broadly delegate legislative power to agencies as long as some intelligible principle guides the exercise of delegated power

Delegation of power to the president:
- No line-item veto to void duly enacted laws without bicameralism and presentment

Delegation of power to Congress:
- No legislative veto to void duly enacted laws without bicameralism and presentment

Question 19

Federal executive power: Domestic powers

Answer 19

Enforcement - President has power and duty to execute laws

Inherent (implied) presidential powers:

1. Highest where authorized by Congress
2. Lowest where prohibited by Congress
3. Gray area where neither

Question 20

Federal executive power and foreign powers

Answer 20

War:
- Congress alone has the power to declare war
President, as commander in chief, has broad discretion to deploy troops internationally to protect American lives and property
–> Challenges are likely non-justiciable as political questions

Question 21

Federal executive power and treaties and executive agreements

Answer 21

The president may negotiate treaties and executive agreements

The senate must approve a treaty by a 2/3rds majority but doesn’t have to approve an executive agreement

Any treaty trumps existing and future state law to the contrary

Any executive agreement trumps existing and future state law

Any treaty trumps existing, but not future) federal law

Any federal law will trump an executive agreement

Question 22

Federalism and then 10th amendment

Answer 22

Powers not granted to the US or prohibited to the states are reserved to the states or the people

General police powers: Reserved to the states. Includes -
- Local health, safety, and economic regulations - receives rational basis review unless they burden a fundamental right or involve a suspect or quasi-suspect classification

Anti-commandeering principle: Congress cannot compel states to enact or administer federal programs

Question 23

Federalism - Supremacy and pre-emption

Answer 23

Supremacy clause: Supremacy of Article VI makes federal law preempt inconsistent state and local laws.
- Fed law includes: Constitution, statutes, regulations, treaties, executive agreements

Preemption types:

• Express: Congress expressly says so
• Implied:
  1. Conflict - Impossible to follow both federal and state law, or state law impedes federal law
  2. Field - Extensive federal regulation indicates congressional intent to occupy the field

Question 24

Dormant commerce clause

Answer 24

Prohibits state law that discriminates against or unduly burdens interstate commerce

Discriminatory laws favoring in-state over out-of-state commerce are invalid unless:

• Necessary to achieve an important governmental purpose (unrelated to economic protectionism), and no less discriminatory alternatives
• There’s congressional approval
• The state is acting as a market participant

Non-discriminatory laws - evenly applied to in-state and out of state commerce - are valid unless the burden on interstate commerce clearly outweighs non-protectionist benefits

Question 25

Privileges and immunities, Article IV

Answer 25

Prohibits state laws that discriminate against out-of-state US citizens regarding: - Important commercial activities (earning livelihood), or - Fundamental rights Discriminatory laws favoring in-state over out-of-state citizens are invalid unless: - Necessary to achieve important government purpose and no less discriminatory alternatives Does not prohibit discrimination against aliens or corporations

Question 26

Privileges and immunities of the 14th amendment

Answer 26

States cannot interfere with the fundamental right to interstate travel (e.g., the right to enter/leave a state, equal treatment once becoming a permanent resident of a state) There's no fundamental right to international travel

Question 27

Application and incorporation

Answer 27

Except for the 13A ban on slavery, the Constitution applies to government action, not private conduct --> State action State action is found when there is: - A state law - State official acting officially (even if unlawfully) - Public function - When a private party performs a function done by the government traditionally and exclusively - State involvement - Significant state involvement in challenged private conduct (e.g. assistance, encouragement, supervision, entwinement, or approval) may count as state action Incorporation: Most protections have been incorporated against states (and their political subdivisions) through the Due Process Clause of the 14A. - Not 3A - 5A right to grand jury indictment - 7A right to jury in civil cases

Question 28

Levels of scrutiny

Answer 28

Rational basis: 1. Rational or legitimate interst 2. Rationally or reasonably related 3. BOP is on the challenger 4. Presumption of validity Intermediate scrutiny: 1. Important or significant state interest 2. Narrowly tailored - subjectively related or close fit, but not least restrictive 3. BOP is on the state 4. No presumption of validity or invalidity Strict scrutiny 1. Compelling state interst 2. Narrowly tailored - least restrictive 3. BOP is on the state 4. Presumption of invalidity

Question 29

Procedural due process

Answer 29

5th amendment DPC applies to federal government 14th amendment DPC applies to states and localities General rule: Individual has right to a fair process when government acts to deprive of life, liberty, or property Deprivation must be intentional or reckless but cannot be negligent Liberty includes: - Physical freedom - Constitutional rights - NOT mere harm to reputation Property includes: - Real and personal, tangible and intangible - Government entitlement to which an individual has a reasonable expectation of continued receipt (e.g. government licenses, public education, set employment contracts, welfare benefits) If deprived, what process is due: 1. Notice reasonably calculated to inform person of deprivation 2. Opportunity to be heard 3. By a neutral decision maker

Question 30

Procedural due process and hearing

Answer 30

Pre-deprivation hearings are generally preferred unless impracticable Balancing test determines the nature and extent of procedures, considering: 1. Importance of interest to individual 2. Risk of error through procedures used 3. Accuracy gain from additional procedures 4. Burden on the government

Question 31

Substantive due process overview

Answer 31

Enumerated rights are specified in the Constituion Unenumerated rights are substantive component of liberty protected by: - 14A DPC against states and localities - 5A DPC against federal government An enumerated or unemerated right is fundamental if it is: - Deeply rooted in this Nation's history and tradition - Implicit in the concept of ordered liberty - Identified as fundamental by reasoned judgment and new insight

Question 32

Due process and/or equal protection

Answer 32

Denying EVERYONE a fundamental right = substantive due process only Denying SOME a fundamental right = substantive due process AND equal protection

Question 33

Substantive due process and levels of scrutiny

Answer 33

Fundamental right = strict scrutiny (compelling government interest, least restrictive means) Non-fundamental rights = rational basis (rationally related to rational interest) Fundamental rights include: - Marriage - Procreation - Contraception - Custody, care, and upbringing of children - Living with extended family - Interstate travel - Voting - Abortion (undue burden test) Non-fundamental rights include: - Economic rights - Education - Physician assisted suicide Unspecified rights include: - Private consensual adult sexual intimiacy - Refusing medical treatment - Bearing arms Reasonable requirements or limits on rights (e.g. age of majority) is okay

Question 34

Fundamental rights and voting

Answer 34

One person one vote principle: State and local governments representatives - including state senators: - Equal protection requires populations of voting districts bu SUBSTANTIALLY equal - Below 10% is presumptively valid, though 16% variance has been upheld as presumptively reasonable Federal representatives - Art. I requires population of congressional districts within a state be as close as mathematical equality as practicable - .7% variance has been invalidated Racial gerrymandering: - Strict scrutiny if race was predominate factor Political gerrymandering: - Non-justiciable as a political question

Question 35

Fundamental rights and abortion

Answer 35

Undue burden test instead of strict scrutiny - Pre-viaiblity: State may REGULATE but not prohibit abortions to protect woman's health or life of fetus; there cannot be an undue burden or substantial obstacle on access to abortion in purpose or effect - Post-viability: State may PROHIBIT abortions unless necessary to protect woman's life or health

Question 36

Equal protection clause

Answer 36

14th amendment applies to the states 5th amendment applies to the federal government Trigger: Government treating people differently A law triggers heightened scrutiny - strict or intermediate - if it: 1. Facially discriminates against a group falling within a suspect or quasi-suspect classification, OR 2. There is a DISPARATE IMPACT on a group falling within a suspect or quasi-suspect classification AND DISCRIMINATORY INTENT against that group Suspect classes (strict scrutiny) includes: 1. Race 2. National origin 3. Alienage classifications by state 4. Denial of fundamental rights to some Quasi-suspect (intermediate scrutiny) 1. Gender 2. Non-marital children 3. Undocumented alien children (maybe) Non-suspect (rational basis) 1. Age 2. Disability 3. Wealth 4. Alienage classifications by congress 5. Alien classifications by State related to democratic governance 6. All other classifications With rational basis: - Animus is not rational

Question 37

Takings

Answer 37

Rule: Federal government (5A taking clause) and stats (14A due process) may not take private property unless: 1. It's for public use 2. Just compensation is provided Property includes: 1. Real personal property - includes rights to possess, use, dispose, etc. 2. Some intangible property Taking includes: - Physical taking - confiscation, regular or permanent occupation - -> Temporary occupation may be takings depending on degree of invasion, duration, government intention, and foreseeability with respect to result, character of property, and interference with use - -> Development exception: Traditional conditions on property development are not taking if benefits are roughly proportional to burdens - -> Emergency exception: Taking less likely to be found, even for complete and permanent deprivation, if pursuant to public emergency, such as war - Regulatory taking: 1. Bright line rule: Taking if regulation on use does not merely diminish property value but leaves no economically viable use 2. Ad-hoc analysis: Maybe a taking considering: - Economic impact of regulation - Interference with investment-backed expectations, and - Character of government action Public use is any legitimate public purpose Just compensation is fair market value at time of taking

Question 38

Retrospective legislation - Contracts clause

Answer 38

No state shall pass any law impairing the obligation of contracts Applies to - State and local laws only Does not apply to - Federal government, judicial decisions Private contracts: - Test: Substantial impairment of existing rights invalid unless - 1. Legitimate or significantt prupose, AND 2. Reasonable or appropriate means Public contracts: Test: Heightened scrutiny - immediate or strict scrutiny

Question 39

Retrospective legislation: Ex post facto laws

Answer 39

Rule: Neither state nor federal government may pass legislation that retroactively alters criminal liability Ex post facto categories: 1. Criminalize act that was innocent when done 2. Make crim greater than when committed 3. Set greater punishment when act was done 4. Reduce evidence required to convict from what was required at the time of the act

Question 40

Retrospective legislation: Bills of attainder

Answer 40

Rule: Neither state nor the federal government may pass legislation that designates particular individuals (by name or description) for punishment without a judicial trial Punishment includes traditional sanctions and punitive measures

Question 41

Freedom of speech - Speech

Answer 41

Words, symbols, and expressive conduct Expressive conduct includes: 1. Conduct that is inherently expressive 2. Conduct that is - Intended to convey message, and - Reasonably likley to be perceived as conveying message

Question 42

Unprotected and protected speech

Answer 42

Unprotected: - Incitement - Fighting words - True threats - Obscenity - Child pornography - Defamation with actual malice - Commercial speech with false, misleading claims or illegal Partly protected: - Defemation about public officials, public figures, or matters of public concern - Commercial speech not misleading, false, or illegal Protected - All other speech

Question 43

Unprotected speech - Incitement

Answer 43

Test: Advocacy of lawless action that is: 1. Intended to produce imminent lawless action, and 2. Likely to produce imminent lawless action Mere advocacy of lawlessness is protected speech

Question 44

Unprotected speech - Fighting words

Answer 44

Test: Words likely to provoke immediate violent response

Question 45

Unprotected speech - True threats

Answer 45

Words intended to convey to someone a serious threat of bodily harm

Question 46

Unprotected speech - Obscenity

Answer 46

Test: Depiction of sexual conduct defined by state law that, taken as a whole, by contemporary community standards: 1. Appeals to the prurient interest in sex, 2. Is patently offensive, and 3. Lacks serious social value by national standards Mere nudity, soft-core porn, and dirty words aren't obscene Right to privacy extends to possession of obscentiy at home, which may not be banned Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning: 1. To protect children or unwilling adults from exposure 2. To prevent neighborhood crime and decay 3. Ample alternative channels must exist

Question 47

Unprotected speech - Child pornography

Answer 47

Test: Depiction of children engaging in sexual conduct defined by state law, whether or not obscene: 1. Must be actual children - not virtual or adult 2. In-home possession may be banned

Question 48

Less protected speech - Defamation:

Answer 48

Rule: To promote robust public debate, 1A bars recovery under state defamation law for speech made without actual malice about: 1. Public officials 2. Public figures 3. Matters of public concern Actual malice - Must prove by clear and convincing evidence that speaker had either, 1. Knowledge of falsity, or 2. Reckless disregard of the truth Public officials - include: 1. Holding or running for elective office 2. Public employees in positions of public importance Public figures - include: 1. Assumed roles of prominence in society 2. Achieved pervasive fame and noteriety 3. Thrust themselves into particular public controversies to influence their resolution Public concern: Matters important to society and democracy

Question 49

Less protected speech - Defemation and Intentional infliction of emotional distress and other torts

Answer 49

The Court has required actual malice for recovery under intentional infliction of emotional distress and other torts, at least where plaintiff is a public figure or public official, or speech is on a matter of public concern

Question 50

Less protected speech - Commercial speech

Answer 50

Includes: Ads and promotions of products and services, brand marketing Insufficient: Things with a profit motive Unprotected if: False, misleading, or illegal product or service Test - intermediate scrutiny 1. Substantial government interest (e.g. consumer protection) 2. Narrowly tailored

Question 51

General speech restrictions

Answer 51

General free speech tests: 1. Content-based = strict scrutiny 2. Content-neutral = intermediate scrutiny Content-based: Content-based restrictions facially target certain topics or messages, or are justified by reference to potential harms produced by certain topics or messages Content-neutral: Do not target certain topics or messages and suppress speech for reasons unrelated to any topics or messages - Often channels speech on basis of TIME PLACE OR MANNER

Question 52

Speech restrictions on government property

Answer 52

Traditional public forum: 1. Open to public as free speech zone from time immemorial 2. includes parks, streets, sidewalks 3. Cannot be undesignated as a public forum 4. Receives strict scrutiny if content-based and intermediate scrutiny if content neutral Designated public forum: 1. Opened by policy or purposeful practice as free speech zone 2. Includes college kiosks, college email systems 3. Can be undesignated as a public form 4. Receives strict scrutiny if content-based and intermediate scrutiny if content neutral Limited public forum: 1. Reserved for paritcular topics or speakers 2. Includes courtrooms, university classrooms, university sutdent activities 3. Limits are reasonable given nature of form - unless viewpoint based, the strict scrutiny applies Non-public forum: 1. Not opened by tradition or designation as free speech zone 2. Includes post offices, DMV's, airports 3. Limits are reasonable given nature of form - unless viewpoint based, the strict scrutiny applies Viewpoint based: Content-based restriction that limits speech to one-side of a subject

Question 53

Public schools - student speech test

Answer 53

Personal student speech: 1. Cannot be censored absent evidence of SUBSTANTIAL DISRUPTION - Exception: Speech promoting illegal drug use does not require a showing of any disruption or credible threat of disruption School speech - including curricular or some extracurricular student speech: 1. Can be censored if reasonably related to legitimate pedagogical concern

Question 54

Public employment

Answer 54

Public employee speech: - Unprotected if: 1. Private concern at workplace 2. Public concern, but pursuant to official duties Protected employee speech: 1. Private concern outside workplace 2. Public concern as a citizen rather than pursuant to official duties, at or outside workplace Test for protected public employee speech: Balance speech value with state interest in efficent and effecitve operation Political patronage: Public employees may not be hired or fired based on political affiliation or expression. - Exception: High level policy makers and advisers

Question 55

Vagueness, overbreadth, prior restraints

Answer 55

Vagueness Test: Law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what is permitted Overbredht test: Law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress - Third party standing is allowed - plaintiff whose speech may be censored raises non-commercial speech claim on behalf of others whose speech may not be censored Prior restraints Definition: Licensing schemes or injunctions that prevent speech before it occurs, rather than punishing speech afterwards Disfavored historically - Content-based prior restrictions recieve very strict scrutiny - Licensing systems must have sufficiently definite content-neutral standards to cabin discretion as well as prompt judicial review of denials

Question 56

Government speech

Answer 56

Government speech is generally not subject to 1A - 1A does not constrain government from espousing whatever views it wants - BUT 1A does constrain government's ability to compel private parties to convey messages

Question 57

Freedom of religion - Free exercise clause

Answer 57

The government may inquire into the the sincerity of religious beliefs, but not their truths Free exercise test: 1. Discriminatory laws - strict scrutiny - Not neutral - Not generally applicable but targeted at religion generally or a religion in particular 2. Natural laws of general applicability - not subject to free exercise clause - Exception: Free exercise clause exempts religious organizations from neutral employment laws in hiring or firing ministers, including teachers at religious schools

Question 58

Freedom of religion and establishment clause

Answer 58

Court hasn't settled on a single test, so government may violate under one or more tests: 1. Neutrality - Government must remain neutral with respect to religion, neither favoring nor disfavoring it 2. Coercion: Government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion 3. Lemon test: A law does not violate the Establishment Clause if: a. The primary purpose is secular; b. Primary effect does not advance or inhibit religion; c. Avoids excessive entanglement between government and religion 4. Endorsement: From standpoint of reasonable and informed observer, government must not appear to endorse or disapprove of religion, making it seem relevant to a person's standing in the political community 5. History and tradition: Sometimes, the Court sets aside the above principles and finds that a state religion display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation