Constitutional law

Question 1

Eleventh Amendment jurisdiction of courts, and abrogation

Answer 1

A private individual cannot sue a state for money
damages in federal court.

Abrogation—Congress may expressly repeal state immunity if acting to enforce rights under
the 13th, 14th, and 15th Amendments

 Congress may not abrogate state immunity by exercising Article I powers (such as the Commerce Clause)

Tip: this is usually the wrong answer on the MBE.

Question 2

Can Congress divide the Supreme Court?

Answer 2

Congress cannot eliminate the Supreme
Court or divide it.

However, Congress may establish lower federal courts and give those courts jurisdiction to hear the same types of cases that go to the Supreme Court (and it has done so for all cases besides cases between states)

11th amendment? I think

Question 3

Standing Elements, and mootness and ripeness

Answer 3

An individual needs an

1) injury in fact,
2) causation,
3) redressability in order to file a lawsuit.

The case must be ripe and cannot be moot.

Mootness—must have a live controversy
Ripeness—injury must have occurred or not be speculative

Question 4

Can a court render advisory opinions?

Answer 4

A court will not render advisory opinions! If I had to guess it’s because there isn’t a controversy or something similar.

Question 5

Organizational standing

Answer 5

: For an organization to have standing,
it must show: a member has standing, the member’s
injury is related to the purpose of the organization, and
individual members are not required to participate in the
lawsuit

Question 6

Organizational standing elements

Answer 6

For an organization to have standing,
it must show:
1) a member has standing,
2) the member’s injury is related to the purpose of the organization, and
3) individual members are not required to participate in the
lawsuit

In addressing organizational standing, you must first analyze individual standing to meet the first requirement.

Question 7

Congressional powers from the Constitution (Just list)

Answer 7

• Necessary and proper power: Tip: this must be 
combined with another power.
• Taxing and spending power: 
• Commerce power: 
• War and defense power:
• Enforcement power: 
• admiral and maritime power,
*property power, 
*investigatory power, 
*postal power, 
*copyright and patent power, 
*power to coin money, 
*power to impeach, 
*and the power to delegate powers

Question 8

Commerce Clause (elements)

Answer 8

o Congress has the power to regulate interstate commerce:

1) Channels of interstate commerce
2) Instrumentalities of interstate commerce
3) Activities that have a substantial effect on interstate commerce

This is very broad. Congress can regulate anything economic and anything noneconomic that substantially affects interstate commerce

Question 9

Substantial Effect on interstate commerce analyssi

Answer 9

 Economic activity is presumed to have a substantial effect.
 Aggregation—can regulate economic activity that is intrastate if the activity as a whole
has an effect on interstate commerce

Noneconomic activity cannot be aggregated; the activity itself must have a
substantial impact on interstate commerce

Question 10

Congressional Tax and Spending power, when is it permitted, and how can Congress use it’s spending power

Answer 10

Congress may tax and spend for the general welfare. Tip: it cannot “act” for the general welfare.

Congress can condition federal funds to states and require states to implement certain regulations

o Permitted as long as the condition is related to the purpose of the funds
HOWEVER the condition may not exceed the point at which “pressure turns into compulsion.” ( like 5-10% ok?)

Question 11

What is commandeering?

Answer 11

Under the 10th amendment, Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.

 A valid exercise of the Spending Power does not violate the 10th Amendment

Question 12

How can Congress delegate it’s powers?

Answer 12

Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards

Congress can delegate legislative power to executive
agencies or the judiciary.

However, the power cannot be uniquely delegated to Congress by the Constitution (e.g., the power to declare war)

Question 13

Where does Congress have Police powers?

Answer 13

Congress does not have 
police powers except over 
1. (MILD) military bases, 
2. Indian territories, 
3. federal lands, and 
4. D.C.

Question 14

What is a legislative veto?

Answer 14

This occurs when Congress tries to overturn action by the executive branch without bicameralism and presentment.

UNCONSTITUIONAL

Question 15

What kind of cases can the Supreme Court review?

Answer 15

federal courts of appeals and federal decisions made by state courts.

Question 16

Federal Decisions made by state courts? When can Supreme Court hear those?

Answer 16

The Supreme Court can hear the latter type of case if:
1. the case involves a matter of federal law,
2. it is a final judgment from the highest state court authorized to hear the case, and
3. there are no adequate and independent
nonfederal (state) grounds on which the state court
decision is based.

Tip: if a state court decision rests on two grounds (a state ground and a federal ground) and the Supreme Court’s reversal of the federal decision would not change the outcome, the Supreme Court cannot hear the case

Question 17

Political Questions Examples of what courts cannot hear

Answer 17

Federal courts will not hear political questions (those given to another branch of government by the Constitution).

Tip: Examples include: “republican form of government” clause challenges, military or foreign affairs decisions, or
impeachment.

Question 18

Should federal courts enjoin pending state court proceedings?

Answer 18

federal courts should not enjoin pending state court proceedings unless the case is brought in bad faith or for harassment purposes

Question 19

Powers the president has ( just list)

Answer 19

1) Veto power
2) Appointment and removal power
3) Pardons
4) War Power
5) Foreign Affairs
6) Treatises and executive agreements

Question 20

Veto power of President

Answer 20

•The President can veto a law (but this can be overridden by a 2/3 majority vote by Congress).

A line item veto (crossing out certain portions of the bill that the President does not approve of) is not
permitted.

Question 21

Presidential Appointment and Removal Power Process: Who can appoint, and how

Answer 21

The President has the power to appoint federal judges, ambassadors, and other principal officers of the United States, with the advice and consent of the Senate.

The President may also remove executive officials without cause, at will unless Congress limits removal for “good cause.”

Question 22

Presidential Powers of Pardons, War Power and Foreign Affairs

Answer 22

• Pardons: the President may grant pardons for federal crimes.

• War power: The President can respond to attacks or emergency situations. The President cannot declare
war.

• Foreign affairs: the President has broad foreign affair powers, like have power to recognize country, etc.
Foreign Affairs
President has the power to conduct foreign negotiations, to deploy troops overseas, and to
make executive agreements

Question 23

Presidential power: treatises and executive agreements

Answer 23

The President may enter into treaties with 2/3 Senate approval.

The President may enter into executive agreements with the heads of foreign countries.

Question 24

How does presidential Immunity Work

Answer 24

the President is absolutely immune from civil suits for damages for any official acts as President (but not purely personal or pre-presidential acts).

Question 25

Supreme Court's Original, and original and exclusive jurisdiction

Answer 25

Original and exclusive jurisdiction for cases between states. Tip: remember that only the Supreme Court can hear cases between states Original jurisdiction over any case that involves (APS) ambassadors, public ministers and consuls, or where the state is a party.

Question 26

Supremacy Clause and Preemption

Answer 26

States may not pass laws (1) that conflict with federal law, (2) that interfere with a federal objective, or (3) in areas where Congress has intended to “occupy the field.” If state law conflicts with federal law, the federal law governs a. Express Preemption  The federal law explicitly states that it is the only law allowed in that area.  Any state law addressing that issue is invalid. b. Implied Preemption 1) Congress passes a federal law intending to “occupy the field” 2) The state law conflicts directly with federal law 1) The state law conflicts indirectly with federal law

Question 27

Federal immunity from state law

Answer 27

A state cannot regulate or tax the federal government. However, a state may tax federal employees the same that they tax everyone else. Tip: This is a bar exam favorite. E.g., the federal government does not have to abide by state environmental regulation because of federal immunity.

Question 28

Article IV Privileges and Immunities Clause

Answer 28

States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means. o This protection only applies to individual citizens; corporations cannot claim this clause Tip: This is usually the issue when a state gives a hiring preference to its own citizens and discriminates against out-of-state citizens. Employment is only a fundamental right for purposes of Article IV.

Question 29

The Fourteenth Amendment Privileges or Immunities Clause

Answer 29

States are not allowed to pass laws that would restrict access to vital governmental services (e.g., welfare benefits) to newcomers because such laws would interfere with a citizen’s fundamental right to travel from state to state. Tip: this is usually the wrong answer on the MBE.

Question 30

Dormant Commerce Clause

Answer 30

Under the Dormant Commerce Clause, a state may not discriminate against out of state commerce or in a way that unduly burdens interstate commerce Remember that these rules apply to the states. Congress can pass laws that discriminate against commerce

Question 31

Discrimination under DCC, and exception

Answer 31

 Can be discriminatory on its face or by its impact  If a statute discriminates against out-of-state commerce, the state must show: a) It has an important state interest; and b) There is no other non-discriminatory means available to achieve that interest  Market Participant Exception—can favor local business if state is acting as a buyer or seller

Question 32

Unduly Burden Interstate Commerce analysis under DCC

Answer 32

 If a statute is not discriminatory, the law may still be invalid if causes an “undue burden” on interstate commerce.  A court will apply Pike balance test: • The purpose of the statute; • The burden on interstate commerce; and • Whether there are less restrictive alternatives

Question 33

Full Faith and Credit Clause:

Answer 33

states must enforce judgments of other states if the court that rendered the judgment had jurisdiction and the judgment was a final judgment on the merits

Question 34

Can private entities be charged with constitutional issues like 1st amendment?

Answer 34

• The constitution protects against wrongful conduct by the government, not private parties. HOWEVER A private entity may be subject to the constitution if it is acting as if it is a state

Question 35

5th Amendment—Takings Clause, just generally what is it

Answer 35

Government may not take private property for public use without just compensation

Question 36

Definition of the "elements" of a 5th amendment taking (govt action, private property, public use, just compensation)

Answer 36

1. Government Action o Protects from government “taking” of private property o Includes taking land and also regulatory takings by rezoning, prohibiting development, etc. 2. Private Property o Usually involves land or other real property o Can be other property such as contract and patent rights or trade secrets 3. Public Use o Must be rationally related to a conceivable public purpose o Includes health, safety, economic development, etc. 4. Just compensation o Property owner is entitled to the fair market value of the property at the time of the taking o Only a portion has been taken—owner entitled to compensation for land actually taken and any loss in value of the land still owned Exam Tip 4: In past exams, the plaintiff has asked for the fair market value of the land as if it had been developed. The plaintiff’s recovery is limited to the value of the land at the time of taking.

Question 37

Physical taking under 5th amendment

Answer 37

Government physically takes or occupies the land

Question 38

Regulatory Taking under the 5th amendment, total and partial taking, and factors analyzed under that.

Answer 38

A law has the effect of decreasing the value of the property 1) Total Taking—the regulation leaves no economically viable use of the property 2) Partial Taking—the regulation affects some economic use of the land, but there is still some economic use available a) Economic impact—how much value was lost due to the regulation; b) Reasonable expectations—the owner’s reasonable expectation of return on investment; and c) Character of the regulation—does the regulation impact a few owners or the entire community?

Question 39

Exaction taking under the 5th amendment, when is it NOT a taking

Answer 39

 Local government may exact promises from a developer in exchange for construction permits Example 5: Requiring the developer set aside an easement over the developed land  Does NOT constitute a taking if there is: a) An essential nexus between legitimate state interests and the conditions imposed; and b) A rough proportionality between the burden on the owner and the impact on the community

Question 40

Zoning Ordinances: When can local Govts pass, and are they a taking under the 5th amendment?

Answer 40

o Local governments have the power to pass zoning ordinances, so long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare). b. Variance  May be granted to allow the owner to continue the nonconforming use of the land  The owner must show an undue burden if the variance is not granted. c. Takings Clause Claim  Must show that the zoning ordinance amounts to a regulatory taking

Question 41

How is due process applied through the constitution compared to state and federal

Answer 41

The Due Process Clause is found in the Fifth Amendment and applies to the states through the Fourteenth Amendment. And federal Govt is 5th only needed. The focus is on the right that is being burdened.

Question 42

Procedural Due Process

Answer 42

1. Procedural Due Process o The government shall not deprive a person of life, liberty, or property without due process of law. o Process includes notice, a hearing, and a neutral decisionmaker a. Amount of Process Due—Factors: 1) Interest affected—life, liberty (including fundamental rights), or property; 2) Value of additional safeguards; and 3) Burden or cost of additional process Tip: property includes public education and public employment that is not at-will employment.

Question 43

Substantive Due Process ( just basic definition)

Answer 43

Whether the government’s action (such as a law or regulation) impermissibly infringes on an individual’s rights

Question 44

Strict Scrutiny REview

Answer 44

the burden is on the government to show the law is | necessary for a compelling interest.

Question 45

Rational Basis Review

Answer 45

the burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.

Question 46

What are fundamental rights under Substantive due process?

Answer 46

Life, Liberty, property and privacy rights (MCSOFA = marriage, contraception and procreation, sexual conduct, obscenity in the home, family relations, abortion), the right to vote, the right to interstate travel, and the right to refuse medical treatment.

Question 47

Focus of Equal Protection Clause and hwo it is applied to State and Federal Govt.

Answer 47

The focus is on the class that is being discriminated against The Equal Protection Clause applies to the states through the Fourteenth Amendment and the federal government through the Due Process Clause of the Fifth Amendment.

Question 48

Discrimination requirement under the Equal protection Clause, and which review standard applies to each TYPE

Answer 48

Discrimination requirement o Discriminatory intent—strict or intermediate scrutiny (depending on classification) o Disparate impact—rational basis review Determine whether the statute is facially discriminatory or impliedly discriminatory and whether there is a discriminatory intent. If the statute merely has a disparate impact, it is limited to rational basis review.

Question 49

What falls under SS in EP clause

Answer 49

race, ethnicity, and national origin

Question 50

What falls Under intermediate Scrutiny under EP

Answer 50

Gender and Non-marital children born outside marriage ( Legitimacy)

Question 51

Intermediate Scrutiny Review

Answer 51

the burden is on the government to show the regulation is substantially related to an important government interest

Question 52

What is the effect of the enabling Clause

Answer 52

Under the 14th Amendment, Sec. 5, Congress may pass legislation to enforce equal protection and due process rights (overriding state statutes)

Question 53

1st amendment- Symbolic Speech, Expressive Conduct, when is ti valid

Answer 53

Law that regulates conduct and places an incidental burden on speech is allowable if 1) the regulation is narrowly tailored to an important governmental interest 2) and it is unrelated to the suppression of the speech.

Question 54

1st Amendment Over Breadth

Answer 54

Overbreadth: a law is unconstitutional on its face if it prohibits substantially more expression than is necessary.

Question 55

1st amendment Vagueness

Answer 55

: a statute is vague and unconstitutional on its face if a reasonable person could not tell what speech is prohibited and what speech is allowed (e.g., a statute that prohibits words that “tend to breach the peace” is vague and unconstitutional). Ie: A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

Question 56

Prior Restraints 1st Amendment

Answer 56

When the government prevents speech before it is communicated. Strict scrutiny applies. o Prior restraints are generally not allowed unless specific procedural safeguards are in place Tip: the law is usually struck down.

Question 57

1st Amendment Content Based Regulations

Answer 57

SS applies unless Symbolic Speech "Exception" law that regulates conduct and places an incidental burden on speech is allowable if the regulation is narrowly tailored to an important governmental interest and it is unrelated to the suppression of the speech.

Question 58

1st amendment Content Neutral: Public Forums, Test and what those forums are

Answer 58

Time, place, manner (content-neutral or -based) Public Forums: Designated or limited public forum (e.g., schools with after-school clubs)  Not historically used for speech-related activities but has been opened for such use Traditional public forum (e.g., streets, sidewalks, and parks) Test: the regulation must (1) be content neutral, (2) be narrowly tailored, and (3) leave open alternative channels of communication.

Question 59

1st amendment Content Neutral, Private Forums

Answer 59

(military bases, airports, and prisons) ( and GOVT BUILDINGS) Test: the regulation must (1) be viewpoint neutral, and (2) have a reasonable relation to a legitimate government interest.

Question 60

What speech is unprotected, 3 categories and the factors therein

Answer 60

1) Obscenity—the average person, applying contemporary community standards finds the speech: • Appeals to the prurient interest; • Depicts sexual conduct in a patently offensive way; and • Lacks serious literary, artistic, political, or scientific value 2) Incitement to Violence—advocates use of force or unlawful action if: * Directed to inciting or producing imminent lawless action; and * Is likely to incite or produce such action (i.e., creates a clear and present danger) 3) Fighting Words—by their very nature, likely to incite an immediate breach of the peace

Question 61

1st amendment and Commercial Speech

Answer 61

Commercial speech: (1) the speech must be lawful and not misleading or false, (2) the statute must serve a substantial governmental interest, (3) the statute must directly advance that interest, and (4) the statute must be narrowly tailored (not more excessive than it needs to be).

Question 62

1st amendment and defamation

Answer 62

There are constitutional limitations on defamation actions when the plaintiff is a public official or public figure, or the speech involves a matter of public concern. MORE IN THE TORTS

Question 63

1st amendment and School Speech Limitations

Answer 63

Public school students have free speech rights but speech may be regulated if the regulations are reasonably related to legitimate pedagogical(educational) concerns

Question 64

1st amendment and Sexual or indecent | speech

Answer 64

Sexual or indecent speech: (1) it appeals to a prurient interest in sex; (2) it depicts or describes sexual conduct in a patently offensive way; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 65

Establishment Clause, Facially Neutral and Facially Preference

Answer 65

Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion Facially Religious Preference If statute shows a preference to one religion over another (or to religion over non-religion), strict scrutiny applies b. Facially Neutral Statute  A statute might have the effect of favoring religion  Apply the Lemon test to determine whether the statute is constitutional: a) The law must have a secular purpose; b) The primary effect neither advances nor prohibits religion; and c) The law does not result in excessive government entanglement with religion

Question 66

Free Exercise Clause, Belief and Conduct

Answer 66

o Includes the freedom to believe and the freedom to act Note 4: Religion is protected, but philosophies and political beliefs are not. o Must have a genuine belief in that religion a. Belief A person’s beliefs are absolutely protected. b. Conduct  Laws that intentionally target religions conduct are subject to strict scrutiny.  Laws that are generally applicable, but happen to impact religion are subject to the rational basis test

Question 67

Ex post facto laws

Answer 67

neither states nor the federal government may pass legislation that retroactively alters a criminal law in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

Question 68

The Contracts Clause

Answer 68

A state may not pass legislation that substantially impairs preexisting contracts unless the law serves an important and legitimate public interest and it is reasonable and narrowly tailored to promoting that interest. Tip: this is usually the wrong answer on the MBE.

Question 69

Bill of attainder:

Answer 69

neither the state nor the federal government may pass legislation that specifically identifies people to be punished (civilly or criminally) and imposes punishment without a judicial trial.

Question 70

Unconstitutional conditions

Answer 70

the government cannot condition a person’s receipt of a | governmental benefit on the waiver of a constitutionally protected right.

Question 71

When is State Action required

Answer 71

State action requirement: If a plaintiff sues under the First, Fourteenth, or Fifteenth Amendments (e.g., for free speech, due process, equal protection issues, or voting rights), the plaintiff must show state action. State action is present if the state passes a law, if a private actor performs a “traditional and exclusive” government function (e.g., a company town), or if private action is closely controlled by the state.

Question 72

Can Congres Limit the jurisdiction of federal court

Answer 72

Article III grants Congress the power to limit the jurisdiction of federal courts (Choice C). But when exercising this power, Congress cannot violate: the separation-of-powers doctrine (e.g., usurping judicial power to decide cases) or other constitutional provisions (e.g., the Article I suspension clause).

Question 73

Con law suspension clause,

Answer 73

Under the Article I suspension clause, a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control (e.g., the noncitizen here).

Question 74

Can congress affect US Supreme Court jurisdiction?

Answer 74

The U.S. Supreme Court (SCOTUS) has appellate jurisdiction to review a final judgment of lower federal courts and the highest state courts when the judgment turns on federal law. But the Article III exceptions clause gives Congress power to expand, regulate, or make exceptions to such jurisdiction.

Question 75

States Taxing Federal Govt, when it OK, when not

Answer 75

The supremacy clause immunizes the federal government, including its agencies and instrumentalities, from state and municipal taxation unless Congress consents (Choice D). But states can tax the federal government's affiliates, including persons or entities employed by or doing business with the federal government (e.g., contractors—as seen here) (Choice C). This is true even if the cost of the tax is ultimately passed on to the federal government. As a result, an affiliate must pay these taxes unless: Congress has granted the affiliate immunity the tax discriminates against the federal government or the affiliate or the tax substantially interferes with the affiliate's federal purpose or duties—e.g., when a high tax burden makes it impossible for the affiliate to accomplish its federal functions.

Question 76

When is a taking under the 5th amendment not required to compensate?

Answer 76

However, just compensation is not required when the government destroys private property in response to a public peril (e.g., preventing the spread of parasites).

Question 77

Can federal Govt tax states directly?

Answer 77

Under the Tenth Amendment, the federal government cannot impose federal taxes directly on states that unduly interfere with their essential functions. But the Tenth Amendment does not prohibit the federal government from imposing federal taxes on states indirectly through their affiliates—i.e., persons doing business with state governments—so long as the taxes are nondiscriminatory (Choice B). This is true even if the cost of the tax is ultimately passed on to the states.

Question 78

What is the "one person one vote" Principal, and when does it violate the EP Clause

Answer 78

The Fourteenth Amendment equal protection clause ensures that each citizen is given equal voting power (i.e., one person, one vote) by requiring state legislative districts (e.g., state senate districts) to have largely equal populations (Choice A). This "one person, one vote" principle means that the populations in each voting district must be approximately equal. A deviation of 10% or less between the populations of legislative districts is considered minor and does not violate the equal protection clause absent evidence of discrimination.

Question 79

Taxing and spending Clause and when can congress impose an indirect tax?

Answer 79

The Article I, Section 8 taxing and spending clause gives Congress plenary (i.e., exclusive) power to raise federal revenue by imposing and collecting taxes. This allows Congress to impose an indirect tax (e.g., sales tax) so long as the tax is: imposed identically in every state where the taxed goods are found (i.e., geographically uniform) and reasonably related to revenue production (i.e., no provision extraneous to tax purposes).

Question 80

When is a student required to have a procedural due process?

Answer 80

The student's claim raises the right to procedural due process, which requires public colleges and universities to follow certain procedures before they intentionally deprive students of their education by dismissing them. To determine the process due, the court must determine whether the dismissal was for disciplinary or academic reasons. When a student is dismissed for disciplinary reasons (e.g., misconduct), due process typically requires that the student receive: adequate notice of the charges or proceedings against him/her and a meaningful opportunity to be heard (e.g., a hearing) before the college's or university's decision-making body. However, when a student is dismissed for academic reasons (e.g., failure to attain passing grades), a public college or university may do so without providing him/her a meaningful opportunity to be heard. That is because, unlike disciplinary actions, decisions based on a student's academic performance are not adversarial in nature and therefore do not require the tools of judicial decision-making (e.g., presentation of evidence)

Question 81

Can the president withold funds?

Answer 81

Once an appropriations bill becomes law, Congress can require that the appropriated funds be spent as explicitly directed in the law—and the President must "take care" to faithfully follow Congress's directive.

Question 82

When must SCOTUS refuse to hear an appeal or exercise jurisdiction?

Answer 82

The U.S. Supreme Court (SCOTUS) has appellate jurisdiction over most final state-court decisions that present a federal question. But SCOTUS cannot exercise jurisdiction over, and must refuse to hear the appeal of, such decisions if they are based on adequate and independent state grounds. This occurs when: state law completely resolves the matter, such that the application of federal law would not affect the outcome of the case (adequate) and the state court did not rely on federal law to decide the state-law issue (independent).

Question 83

Does an assignee have standing in the Court?

Answer 83

When the plaintiff is an assignee, he/she steps into the shoes of the assignor and assumes all of the assignor's contractual rights. As a result, an assignee has standing to sue to enforce the rights of the assignor provided that the assignment was made for ordinary business purposes (e.g., debt collection) and in good faith.

Question 84

property clause of Article IV

Answer 84

The property clause of Article IV gives Congress the power to dispose of and regulate federally owned lands. But this clause does not give Congress the power to acquire those lands.

Question 85

Intermediate scrutiny

Answer 85

intermediate scrutiny requires the government demonstrate that the law is substantially related to an important government interest.* The law and the government interest that it serves are substantially related when the law is neither underinclusive nor overinclusive.

Question 86

Intermediate Scrutiny

Answer 86

Intermediate scrutiny requires the government demonstrate that the law is substantially related to an important government interest.* The law and the government interest that it serves are substantially related when the law is neither underinclusive nor overinclusive. *The U.S. Supreme Court has required the government to show an "exceedingly persuasive justification" in some gender discrimination cases, which may bring the standard closer to strict scrutiny.

Question 87

Regulatory Taking Factors

Answer 87

A substantial restriction is evaluated by the court under the totality of the circumstances. Such circumstances include: the character or nature of the government action—i.e., the degree to which the regulation benefits the public versus the degree to which it violates the owner's property rights (like selling property to third parties) (Choices A & B) the economic impact on the property—e.g., the change in the property's fair market value caused by the regulation—and the interference with the owner's reasonable investment-backed expectations regarding the use of the property (Choice C).

Question 88

When can Congress impose a direct federal tax?

Answer 88

The taxing and spending clause gives Congress plenary (i.e., exclusive) power to raise federal revenue by imposing taxes. But Congress can impose a direct federal tax (e.g., a tax on real property) only if it is: apportioned proportionately among the states based on each state's population and reasonably related to revenue production (i.e., no provision extraneous to tax purposes).

Question 89

Sovereign immunity

Answer 89

Sovereign immunity (federal immunity from suit in state or federal court) Suit brought by state, private party, or foreign government against federal agency or official for actions taken in official capacity (unless Congress consents) Exception: Suit against federal official for actions taken outside official capacity (congressional consent not required) The doctrine of sovereign immunity prohibits states (or private parties or foreign governments) from suing the federal government in state or federal court unless Congress consents—i.e., the suit is authorized by federal statute. This immunity extends to suits against federal officers (e.g., federal marshals) for actions taken in their official capacities. That is because a suit against a federal officer acting in his/her official capacity is treated as a suit against the federal government itself.

Question 90

Do govt employees have the same 1st amendment protections as regular citizens?

Answer 90

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