Constitutional Law

Question 1

Federal judicial power

Answer 1

Article III

Interpretation of constitution, federal laws, treaties, and admiralty and maritime laws. Disputes between states, states and foreign citizens, and citizens of diverse citizenship.

Question 2

Advisory opinions

Answer 2

Federal courts cannot issue advisory opinions which are decisions that lack

(1) actual dispute between adverse parties
(2) any legally binding effect on the parties

Question 3

Ripeness

Answer 3

To avoid issuing advisory opinions, courts wait until laws and policies have been formalized and can be felt in concrete ways. Can establish ripeness by showing:

(1) issues fit for judicial decision and
(2) plaintiff would suffer substantial hardship in the absence of review

Something is unfit for judicial decision if it relies on uncertain or contingent future events that might not occur.

Question 4

Mootness

Answer 4

Plaintiff needs to be suffering from an ongoing injury, or else the case will be dismissed as moot. Exceptions:

• controversies capable of repetition but that evade review because of their inherently short duration
• cases where defendant voluntarily stops the offending practice but is free to resume it
• class actions in which the class rep’s controversy is moot but the claim of at least one other class member is still viable.

Question 5

Standing

Answer 5

Requirements for standing:

(1) injury in fact- particularized injury that affects plaintiff in personal and individual way AND concrete injury that actually exists. Injury must have already occurred or imminently will occur.
(2) causation- must be a causal connection between injury and conduct complained of
(3) redressability- decision in litigant’s favor must be capable of eliminating their harm

Question 6

Third party standing

Answer 6

A claimant with standing in their own right may assert the rights of a third party if

(1) difficult for third party to assert their own rights (i.e. parent for child)
(2) close relationship exists between claimant and third party
(3) organization can sue on behalf of members if injury in fact to members, members’ injury related to organization’s purpose AND individual member participation is not required in the lawsuit (not seeking individualized damages)

Question 7

Sovereign immunity

Answer 7

Sovereign immunity doctrine in the 11th amendment bars a private party’s suit against a state in federal and state courts and in federal and state agencies.

Exception:

(1) state consents by waiver
(2) actions to enjoin state officer from future conduct that violates the constitution or federal law or for damages against an officer personally
(3) congress removes immunity.

Remember local governments are not included, you can sue them.

Question 8

Abstention

Answer 8

Federal court will temporarily abstain from resolving constitutional claim when the disposition rests on an unsettled question of state law.

Question 9

Political questions

Answer 9

Court will not decide political questions. Political questions are issues constitutionally committed to another branch of government or inherently incapable of judicial resolution.

Question 10

Supreme Court jurisdiction

Answer 10

Mosts cases by writ of certiorari. Court has complete discretion to hear cases that come by writ- cases from highest state court capable of providing a decision where constitutionality of federal statute, treaty or state statute is at issue or state statute violates federal law and cases from federal courts of appeals.

Court gets rare cases on appeal from three-judge federal district court panels that grant or deny injunctions.

Court will not exercise jurisdiction if a state court judgment is based on adequate and independent state law grounds, even if federal issues are involved.

Question 11

Congressional power

Answer 11

Congress can exercise powers enumerated in the constitution under Article I, Section 8, plus any powers necessary and proper to carry out its enumerated powers.

Question 12

Federal police power

Answer 12

Congress has no general police power or power to legislate for health, safety, and welfare of the nation.

Exception:
-police power over D.C., federal lands, military bases, native american reservations.

Question 13

Necessary and proper clause

Answer 13

Congress has the power to make all laws necessary and proper (appropriate and rational) to carry out any of the legislative powers enumerated in Article I, as long as that law does not violate another provision of the constitution.

Question 14

Taxing and spending power

Answer 14

Congress has the power to tax and spend to provide for the general welfare. Can be for any public purpose not prohibited by the constitution.

Question 15

Spending power conditions

Answer 15

Congress can impose conditions on grant of money to state or local governments. These are valid if:

(1) clearly stated
(2) related to purpose of the program
(3) not unduly coercive
(4) do not otherwise violate the constitution

Question 16

Commerce power

Answer 16

Congress has the power to regulate all foreign and interstate commerce as well as commerce with native american tribes. To be within the commerce power:

(1) regulate channels (highways, waterways, telephone lines, internet)
(2) regulate instrumentalities (planes, trains, automobiles) and persons and things in interstate commerce
(3) regulate activities that have a substantial effect on interstate commerce

Question 17

Congress regulation of intrastate commercial activity

Answer 17

The court will uphold regulations if it can find a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.

Congress cannot regulate noneconomic intrastate activity in areas traditionally regulated by state and local governments. (VAWA case) Congress can only regulate existing commercial activity, it cannot compel activity.

Question 18

Delegation of legislative power

Answer 18

Legislative power can generally be delegated to the executive branch or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress. Almost anything will pass as an intelligible standard.

Question 19

Presidential power

Answer 19

• if president acts with express or implied authority of Congress, power at its max and actions likely valid.
• if president acts where congress silent, constitutionality of the action is uncertain, and court considers circumstances and history.
• if president acts against express will of Congress and Congress has authority to act, action likely invalid.

Question 20

Presidential treaty power

Answer 20

President has the power to enter into treaties with consent of 2/3 of senate.

Treaties are supreme law of land like federal laws. State laws that conflict with self-executing treaty are invalid.

If conflict between federal law and treaty, last in time prevails.

Treaties are inferior to the constitution. Cannot be inconsistent with the constitution.

Question 21

Executive agreements

Answer 21

Signed president and head of a foreign country. Can be used for any purpose treaties are used for and do not require consent of sentate.

If state law conflicts with an executive agreement, the agreement prevails.

If an executive agreement conflicts with federal law, the federal law prevails over the agreement.

Question 22

State powers (federalism)

Answer 22

Tenth amendment reserves all other powers to the states. States have general police power to regulate health, safety, and welfare of their people. Regulations will be upheld if they are rational, unless they burden a fundamental right to involve a suspect or quasi-suspect classification.

States cannot directly tax federal instrumentalities without Congress’ consent. States cannot regulate the federal government or its agents while performing their federal functions.

Question 23

Supremacy- Express preemption

Answer 23

A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation. Will be narrowly construed.

Question 24

Supremacy- implied preemption

Answer 24

If state law conflicts with federal law requirements such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted. State or local law prevents achievement of a federal objective, it will also be held to be impliedly preempted.

Question 25

Supremacy- field preemption

Answer 25

Valid federal law may impliedly “occupy” the entire filed, thus barring any state or local law even if the state or local law is nonconflicting. Court will look at the regulatory scheme to determine whether congress intended to preempt the entire field (federal laws are comprehensive or agency created to oversee the area).

Question 26

Interstate privileges and immunities clause

Answer 26

Article IV- Prohibits discrimination by a state against nonresidents when the discrimination concerns either important commercial activities (earning a living) or fundamental rights. (corporations and aliens not protected) Clause only applies if the discrimination is intentionally protectionist in nature.

If state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.

Question 27

State regulation of commerce

Answer 27

Dormant commerce clause or negative commerce clause. If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate comemrce. State must not discriminate against or unduly burden interstate commerce.

A discriminatory state or local law may be valid if it is necssary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternative available.

If a nondiscriminatory state law burdens interstate commerce it will be valid unless the burden outweighs the promotion of a legitimate local interest.

Exceptions
Congressional approval
State acting as a market participant
Favoring government performing traditional government functions like waste management

Question 28

Power of states to tax interstate commerce

Answer 28

States taxes that discriminate against interstate commerce violate the comemrce clause.

Non-discriminatory taxes will be valid if:

(1) substantial nexus when business avails itself of the priviegle of doing business in the state
(2) fair appointment according to rational formula
(3) fair relationship to services or benefits provided by the state

Question 29

Bill of Rights

Answer 29

First 10 Amendments limit federal power. Fourteenth Amendment Due Process clause applies almost all provisions of the Bill of Rights to the states.

Exceptions:

(1) Fifth Amendment prohibition of criminal trial without grand jury indictment
(2) Seventh Amendment right to jury trial in civil cases

Question 30

Thirteenth Amendment

Answer 30

Prohibits slavery and involuntary servitude. Compulsion of labor through the use or threat of physical or legal coercion.

Question 31

Fourteenth Amendment

Answer 31

Prevents states from depriving any person of life, liberty, or property without due process and equal protection of law.

Question 32

Fifteenth Amendment

Answer 32

Prevents federal and state governments from denying a citizen the right to vote on acccount of race or color.

Question 33

State action

Answer 33

State action typically required to find constitutional violation of individual liberties.

Governmental action by government or government officers at local, state, or federal level.

Exception is private individual who performs exclusive public functions or has significant state involvement (granting a license is not enough)

Question 34

Rational basis

Answer 34

Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications.

Law must be rationally related to a legitimate government purpose. Law is usually valid unless it is arbitrary or irrational.

Person challenging the law has the burden of proof.

Examples of non suspect classes- age, disability, poverty.

Question 35

Intermediate scrutiny

Answer 35

regulations involving quasi-suspect classifications.

Law upheld if it is substantially related to an important government purpose.

Burden of proof usually on the government.

Quasi suspect classes- gender and legitimacy

Question 36

Strict scrutiny

Answer 36

regulations involving fundamental rights or involving suspect classifications.

Law upheld if it is necessary (least restrictive means) to achieve a compelling government purpose. “Narrowly tailored to achieve and overriding government purpose” is another way the exam will describe the standard.

Government has the burden of proof

Suspect classes- race, national origin, alienage

Question 37

Procedural due process generally

Answer 37

5th amendment applicable to federal government. Fourteenth amendment applicable to the states.

Person has a right to process when the government deprives them of life, liberty, or property.

Question 38

Liberty

Answer 38

includes more than just phyiscal freedom. Includes right to contract and to engage in gainful employment. Deprivation of liberty occurs if a person:

(1) loses significant freedom of action or
(2) is denied a freedom provided by the Constitution or a statute

Question 39

Property

Answer 39

Property includes personal or real property (tangible or intangible), but also government benefits to which there is an entitlement (reasonable expectation of continued receipt).

ex: welfare benefits, public education, government licenses, tenured government employment or term employment (not at will employment)

Question 40

Procedural due process requirements

Answer 40

(1) notice reasonably calculated to inform person of deprivation
(2) opportunity to be heard AND
- type and extent of hearing determined by balancing test weighing importance of interest to individual and value of procedural safeguards to that interest again government interest in fiscal and administrative effciency. Typically should be a pre-deprivation hearing.
(3) neutral decisionmaker

Procedural due process rights can be waived through voluntary and knowingly made waiver.

Question 41

Substantive due process

Answer 41

Guarantees that laws will be reasonable and not arbitrary. Both with respect to enumerated rights in the Constitution and unenumerated rights, like privacy.

5th amendment due process applies to federal government, 14th amended applies to state and local governments.

Use strict scrutiny standard when a fundamental right is impacted. Use rational basis for all other cases.

Question 42

Fundamental rights

Answer 42

PRIVACY. Marriage, procreation, contraception including abortion, childbearing (companionship, care, custody, and upbringing of children), privacy including freedom to read obscene material in one’s home.

INTERSTATE TRAVEL. Fundamental right to travel from state to state and to be treated equally after moving into a new state.

RIGHT TO VOTE.

FIRST AMENDMENT.

Question 43

Special abortion tests

Answer 43

Before viability a state can regulate but not prohibit abortion to protect woman’s health or life of the fetus. Regulation cannot put an undue burden on a woman’s right to obtain an abortion.

After viability- the state can prohibit abortions unless an abortion is necessary to protect the woman’s health or safety.

Question 44

One person one vote principle

Answer 44

Applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.

For state and local elections the populations of voting districts must be substantially equal. Up to 10% variance is presumptively valid.

For congressional elections, states must use almost exact mathematical equality when creating congressional districts within the state.

Question 45

Unspecified rights

Answer 45

Intimate sexual conduct. Court has not stated a standard but has indicated limitations cannot pass rational basis test because there is no legitimate state interest in regulating.

Right to refuse medical treatment.

Right to bear arms gets more than rational basis review.

Question 46

Equal protection

Answer 46

Equal protection claim arises whenever the government treats people differently from others. Applies to states through Fourteenth Amendment. Applies to federal government through 5th amendment.

Question 47

To apply strict or intermediate scrutiny

Answer 47

Must be intent by the government to discrimination shown by

• law that is discriminatory on its face
• discriminatory application of a facially neutral law
• facially neutral law with disparate impact on protected class of people

Question 48

Suspect classifications

Answer 48

Race and national origin. Alienage (state and local).

Exception:
If state or local law discriminates against alien participation in state government (voting, jury service, elective office) rational basis applies. Also for certain non-elective offices like police officers, probation officers, schoolteachers).

Question 49

Quasi suspect classifications

Answer 49

Gender. Gender classifications must be substantially related to an important government purpose.

Remember that most gender classifications are struck down, especially if they perpetuate stereotypes of economically dependent women.

Distinctions between marital and nonmarital children.

Question 50

Takings clause

Answer 50

5th Amendment provides that private property may be taken only for

(1) public use (rationally related to a legitimate public purpose)
(2) government must pay just compensation. (fair market value of the property taken at the time of the taking)

Rule applicable to the states through the Fourteenth Amendment.

Taking will be found if there is confiscation of a person’s property or a permanent or regular physical occupation of a person’s property by the government.

Temporary occupations may also be a taking depending on degree of invasion, duration, intention, foreseeability of the result, character of the property, and interference with use of the property.

Question 51

Regulatory takings

Answer 51

If a government regulation denies a landowner all economically viable use of their land the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.

Question 52

Contract clause

Answer 52

Limits the ability of state and local governments to enact laws that retroactively impair contract rights.

Legislation that substantially impairs an existing private contract is invalid unless it serves an important and legitimate public interest and is reasonable and a narrowly tailored means of promoting that interest.

Legislation that impairs a contract to which the state is a party is tested by the same basic test but will likely receive heightened scrutiny.

Question 53

Ex post facto laws

Answer 53

Cannot retroactively alter criminal offenses or punishments in a substantially preudijcial manner for the purpose of punishing someone for past activity.

• cannot make an act a crime that was innocent when done
• cannot impose greater punishment for an act than was imposed for the act when it was done
• cannot reduce the evidence required to convict a person of a crime from what was required when the act was committed

Question 54

First Amendment

Answer 54

Prohibits Congress from abridging the freedoms of speech, press, interfering with right of assembly, or establishing a religion or interfering with the free exercise of religion.

Applies to the states through the 14th amendment.

Question 55

What is speech

Answer 55

Expressive conduct is any kind of conduct that is inherently expressive or conduct that is

• Intended to convey a message and
• reasonably likely to be perceived as conveying a message

Question 56

Unprotected speech

Answer 56

Incitement
Fighting words
True threats
Obscenity
Defamatory speech
Some commercial speech

Question 57

Incitement

Answer 57

(1) intended to produce imminent lawless action

(2) likely to produce such action

Question 58

fighting words

Answer 58

Personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely annoying won’t suffice.

Supreme Court will not allow fighting words statutes that are designed to punish only certain viewpoints that insult on the basis of race, religion, or gender.

Question 59

True threats

Answer 59

Words that are intended to convey to someone a serious threat of bodily harm.

Question 60

Obscenity

Answer 60

Describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person

• appeals to the prurient interest in sex, using a contemporary community standard
• is patently offensive under contemporary community standards
• lacks serious value (literary, artistic, political, or scientific) using a national reasonable person standard

Question 61

Defamatory speech

Answer 61

Subject to tort liability. If the defamatory statement is about a public official or public figure or involves a matter of public concern, plaintiff must prove all elements plus falsity and some degree of fault (actual malice) to recover.

Actual malice plaintiff must prove:

(1) knowledge statement was false OR
(2) reckless disregard as to its truth or falsity

Question 62

Commercial speech

Answer 62

Commercial speech is not protected if it is

(1) false
(2) misleading
(3) about illegal products or services

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

• Serves a substantial government interest
• Directly advances that interest and
• Is narrowly tailored to serve that interest (reasonable fit between the goal and the means chosen)

Question 63

Content-based speech restrictions

Answer 63

Subject to strict scrutiny and presumptively unconstitutional unless they fall within one of the categories of unprotected speech.

Question 64

Content-neutral speech regulations

Answer 64

Subject to intermediate scrutiny. Must advance important interests unrelated to suppression of speech and must not burden substantially more speech than necessary.

Often take the form of time, place, and manner restrictions.

Question 65

Speech restrictions on government property

Answer 65

Extent to which government may regulate speech or expressive conduct on government property depends on whether the property involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Question 66

Public forum

Answer 66

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

Use strict scrutiny if content-based.

If content neutral must meet intermediate scrutiny:

• narrowly tailored to serve an important government interest (doesn’t have to be the least restrictive means)
• leave open alternative channels of communication

Question 67

Designated public forum

Answer 67

Public property that has not historically been open to speech-related activities but which the government has thrown open for such activities on a permanent or limited basis by practice or policy (ex: town hall open for use by social, civic, or recreational groups.)

Use strict scrutiny if content-based.

If content neutral must meet intermediate scrutiny:

• narrowly tailored to serve an important government interest (doesn’t have to be the least restrictive means)
• leave open alternative channels of communication

Question 68

Limited public forum

Answer 68

Government forums not historically open generally for speech and assembly but opened for specific speech activity (ex: school gym open to host a debate)

Strict scrutiny if the regulation is viewpoint based.

Government can regulate speech in such forums to reserve the forum for its intended use. Regulations are valid if they are

• viewpoint neutral
• reasonably related to a legitimate government purpose.

Question 69

Nonpublic forum

Answer 69

Government property not historically open generally for speech and assembly and not held open for specific speech activities (military bases or government workplaces).

Strict scrutiny if the regulation is viewpoint based.

Government can regulate speech in such forums to reserve the forum for its intended use. Regulations are valid if they are

• viewpoint neutral
• reasonably related to a legitimate government purpose.

Question 70

Government employee speech

Answer 70

If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment. Government employer can unless punish public employee speech when the speech is made on the job and pursuant to the employee’s duties and touches on a matter of public concern.

If speech is on a matter of public concern but is not made pursuant to employee’s official duties, courts will balance the value of the speech against the government’s interest in efficient operation of the workplace.

Speech on matters of private concern outside of the workplace is protected absent detrimental effect on workplace.

Question 71

Other ways to invalidate laws that restrict speech

Answer 71

Vagueness
Overbreadth- punishes subtantially more speech than necessary
Prior restraints
-narrowly drawn, reasonable, and definite
-Injunction promptly sought and
-prompt and final judicial determination of the validity of the restraint
Regulation cannot give officials unfettered discretion

Question 72

Freedom of the press

Answer 72

Generally, the press has no greater First Amendment freedom than a private citizen. They are treated like any other speaker.

Press has right to be present at trials unless judge makes specific findings that closure was narrowly tailored to preserve a higher value.

Question 73

Freedom of association

Answer 73

Government cannot prohibit politically unpopular groups or unduly burden a person’s right to belong to such groups.

If content-based regulation- strict scrutiny. If content-neutral restriction- intermediate scrutiny.

Question 74

Freedom of religion- free exercise

Answer 74

Free exercise clause prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct.

A law or other government conduct that discriminates on the basis of religion is subject to strict scrutiny. Law is discriminatory if

• not neutral facially with respect to religious belief, conduct, or status or
• not generally applicable but instead targets religion generally or a religion in particular

Free exercise clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct.

Question 75

Establishment clause tests

Answer 75

Lemon

(1) secular purpose
(2) primary effect that neither advances nor inhibits religion AND
(3) does not produce excessive government entanglement with religion

Neutrality- government must remain neutral with respect to religion, neither favoring it nor disfavoring it.

Coercion- government may not directly or indirectly coerce individuals to exercise or refrain from exercising their religion

Endorsement- government must not appear to endorse or disapprove of religion from the standpoint of a reasonable and informed observer and therefore, make religion seem relevant to a person’s standing in the political community.

History and tradition- in some cases, the court will find that a government religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation.