Constitutional Law

Question 1

Judicial Power

What is the source of judicial power?

Answer 1

Article III requires the establishment of a Supreme Court and permits Congress to create other federal courts and place limitations on their jurisdiction.

Question 2

Judicial Power

What is the scope of judicial power?

Answer 2

The judicial power is limited to cases and controversies.

The judiciary also has the power to review: (i) another branch’s act and declare it unconstitutional; (ii) the constitutionality of a decision by a state’s highest court; and (iii) state actions under the Supremacy Clause to ensure constitutionality.

Question 3

Judicial Power

Which amendment places limitations on the judicial power, and what does it entail?

Answer 3

The 11A provides a jurisdictional bar prohibiting citizens of one state from suing another state (not local govt) in federal court.

It immunizes states from suits in federal court for money damages or equitable relief (BUT not injunctions or declaratory relief).

It also bars citizens from suing their own state without the state’s consent in state courts AND federal courts.

Finally, it bars suits in federal court against state officials for violating state law.

Question 4

Judicial Power

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

Answer 4

Exceptions to the 11A include: (i) consent; (ii) injunctive or declaratory relief; (iii) damages paid by state officer; and (iv) Congressional enforcement of 13A, 14A, and 15A rights.

Question 5

Judicial Power

What is SCOTUS’ original jurisdiction? Appellate jurisdiction?

Answer 5

SCOTUS has original jurisdiction over “all cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party. Congress cannot expand or limit this.

SCOTUS has appellate jurisdiction by certiorari (discretionary) and direct appeal (mandatory).

Question 6

Judicial Power

What is adequate and independent state grounds?

Answer 6

SCOTUS can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the state court judgment rested on an adequate and independent state ground.

Adequate means the state ground controls the decision. Independent means the state law does not depend on an interpretation of federal law. If it is unclear, SCOTUS can hear the federal issue.

Question 7

Judicial Power

What is the general rule for standing?

Answer 7

To have standing, the plaintiff must establish: (i) injury in fact; (ii) causation; and (iii) redressability.

Question 8

Judicial Power

What is taxpayer standing?

Answer 8

Generally, a taxpayer has no standing to challenge government allocation of funds.

However, a taxpayer does have standing to challenge her own tax liability and government expenditures that violate the Establishment Clause.

Question 9

Judicial Power

What is third-party standing?

Answer 9

Generally, there is no standing to bring a lawsuit based on the claims of a third party.

However, there is an exception when (i) the third party is unable to assert his own rights; (ii) there is a special relationship between P and the 3P; or (iii) P’s injury adversely affects P’s relationship with the 3P.

Question 10

Judicial Power

What is organizational standing?

Answer 10

An organization can sue on its own behalf or on behalf of its members if (i) its members would have standing to sue in their own right and (ii) the interests at stake are germane to the organization’s purpose.

Question 11

Judicial Power

What are the two timeliness requirements in order for the court to hear a case?

Answer 11

Ripeness requires the plaintiff to have experienced a real injury (or imminent threat thereof).

Mootness means it must be a live controversy at each stage of review. A case is not moot if the controversy is capable of repetition but is evading review or if the defendant ceases its illegal or wrongful action upon filing suit.

Question 12

Judicial Power

What are the three potential justiciability issues?

Answer 12

The court may not issue advisory opinions because an actual case or controversy must exist.

Declaratory judgments are not prohibited but the challenged action must pose real and immediate danger to the party’s interests.

Political questions are not subject to judicial reciew when the Constitution has assigned decision making to a different branch or the matter is inherently not one that the judiciary can decide.

Question 13

Judicial Power

What is absention (generally)?

Answer 13

A federal court may abstain from deciding a claim when strong state interests are at stake.

Question 14

Powers of Congress

When may Congress regulate interstate commerce?

Answer 14

Congress has the power to regulate: (i) the channels and (ii) the instrumentalities of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce.

Question 15

Powers of Congress

How is substantial economic affect analyzed under the Commerce Clause?

Answer 15

Congress has the power to regulate even an intrastate activity so long as there is a rational basis for concluding that, in the aggregate, the activity substantially affects interstate commerce.

Question 16

Powers of Congress

What is Congress’ taxing and spending power?

Answer 16

A tax by Congress will be upheld if has a reasonable relationship to revenue production. Congress has plenary power to impose taxes to raise revenue for any public purpose.

Congress has the power to spend for any public purpose, including the power to condition federal funding to induce state action.

Question 17

Powers of Congress

Can Congress regulate non-economic activity under the Commerce Clause?

Answer 17

To regulate intrastate, non-economic activity that involves an area of traditional state concern, the non-economic activity must have a substantial economic effect on interstate commerce.

Question 18

Powers of Congress

What is Congress’ property power?

Answer 18

There are no express limits on Congress’ power to dispose of federal property.

Question 19

Powers of Congress

What are Congress’ war and defense powers?

Answer 19

Congress has the power to declare war, raise and support armies, provide and maintain a navy, provide for the national defense, establish military courts and tribunals, and authorize the President to call the National Guard.

Question 20

Powers of Congress

What is Congress’ power over noncitizens and naturalization?

Answer 20

Congress has plenary power over noncitizens, subject to the Due Process Clause for those within the US. Congress also has exclusive authority over naturalization.

Question 21

Powers of Congress

What powers does Congress have under the Necessary and Proper Clause?

Answer 21

Congress has the power to enacy any legislation necessary and proper to execute any authority granted to any branch of government, but this is NOT an independent source of power.

Question 22

Powers of Congress

What power does Congress have to enforce the 13A, 14A, and 15A?

Answer 22

Congress has the power to adopt legislation rationally related to eliminating racial discrimination, even if it’s purely private conduct.

Congress can pass legislation to enforce equal protection and due process rights, but it cannot expand or create new rights.

The 15A prohibits both state and federal governments from denying any citizen the right to vote on the basis of race, color, or servitude. Congress cannot treat states differently unless it is rationally justified by current circumstances.

Question 23

Intergovernmental Immunities

What is the extent of federal immunity?

Answer 23

The states have no power to regulate the federal government (unless permitted by Congress or not inconsistent with federal policy).

The federal government and its instrumentalities are immune from taxation by the states (unless generally applicable indirect taxes that do not unreasonably burden the federal government).

Question 24

Intergovernmental Immunities

How may the federal government regulate the states?

Answer 24

The federal government has virtually unlimited power to regulate the states. As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states.

Question 25

**Intergovernmental Immunities** What is the primary limit on Congress' power to regulate the states?

Answer 25

Congress cannot **commandeer** state legislatures by commanding them to enact specific legislation (or prohibiting a state from enacting new laws).

Question 26

**Intergovernmental Immunities** What are the limits on Congress' conditioning of federal funds (e.g., the spending power)?

Answer 26

The condition must (i) be for the **general welfare**, (ii) be **unambiguous**, (iii) **relate** to the federal interest in particular national projects or programs, (iv) not induce states to act **unconstitutionally**, and (v) **not exceed** the point at which pressure turns into **compulsion**.

Question 27

**Intergovernmental Immunities** May the federal government tax a state?

Answer 27

**Yes.** The federal government may tax a state, but states have a **partial immunity from direct federal taxation** that would **unduly interfere** with the performance of the states' sovereign functions of government.

Question 28

**State Regulation/Taxation of Commerce** What is the general rule under the Dormant Commerce Clause?

Answer 28

Under the Dormant Commerce Clause, if Congress has not acted, the **states can regulate interstate commerce** so long as the regulation does not: (i) **discriminate** against out-of-state commerce; (ii) **unduly burden** interstate commerce; or (iii) regulate **wholly** **out-of-state** activity.

Question 29

**State Regulation/Taxation of Commerce** When can a discriminatory state or local regulation be upheld?

Answer 29

A regulation that discriminates against out-of-state commerce may be upheld if: (i) an **important local interest** is being served and (ii) **no other nondiscriminatory means** are available to achieve that purpose. However, these are **rarely upheld**.

Question 30

**State Regulation/Taxation of Commerce** What is the market participant exception?

Answer 30

Under the **market participant exception**, a state can **favor local commerce** or **discriminate against nonresident commerce** like a private business if the state is **acting as a buyer or seller**. However, this does **not** apply to challenges pursuant to the **Privileges and Immunities Clause**.

Question 31

**State Regulation/Taxation of Commerce** What is a traditional government function for purposes of the DCC?

Answer 31

State and local regulations **can favor** state and local government entities (but **not** private entities) if the entities are performing a **traditional government function** (e.g., waste disposal).

Question 32

**State Regulation/Taxation of Commerce** What is considered an undue burden on interstate commerce?

Answer 32

A **nondiscriminatory** state regulation may still be **struck down** if it imposes an **undue burden** on interstate commerce. The court will weigh the **purpose of the state law** against the **burden** on interstate commerce and evaluate whether there are **less restrictive alternatives**.

Question 33

**State Regulation/Taxation of Commerce** Can a state tax interstate commerce?

Answer 33

**Yes.** States may tax interstate commerce **only if Congress has not already acted** in the particular area and the tax **does not** **discriminate** against or **unduly burden** interstate commerce.

Question 34

**State Regulation/Taxation of Commerce** What is the four-part test for state taxation of interstate commerce?

Answer 34

The four-part test is: (i) **substantial nexus** between the activity being taxes and the taxing state; (ii) **fair apportionment** between interstate and local commerce; (iii) **nondiscrimination** between interstate and local commerce; and (iv) **fair relationship** between the tax and the services provided by the taxing state.

Question 35

**State Regulation/Taxation of Commerce** Can a state tax foreign commerce?

Answer 35

**Generally no**. States must have **congressional consent** to impose **import or export taxes** (except what is absolutely necessary for executing its inspection laws).

Question 36

**State Action** What is the threshold requirement for triggering constitutional protections?

Answer 36

**State action.** State action for **private parties** is found when a private person carries on activities that are **traditionally performed exclusively by the state**, such as running primary elecitons or governing a “company town.”

Question 37

**State Action** What is significant state involvement for purposes of determining state action?

Answer 37

**Significant state involvement** means sufficient **mutual contacts** **between** the conduct of a **private party** and the **government** such that the government is **pervasively entwined** with the entity and (i) **constitutional standards** should apply to the **private actor**; or (ii) a **mutual benefit** results. It may also exist when the **state creates a private entity** by special law for the furtherance of governmental objectives and retains permanent control of the entity.

Question 38

**State Action** Is licensing/regulation considered state action?

Answer 38

**No.** Mere **licensing or regulation** of a private party is **not** state action. The state must act **affirmatively** to **facilitate, encourage, or authorize** the activity.

Question 39

**State Action** What is considered **insignificant** state involvement?

Answer 39

In the following scenarios, there is **no state action** because there is insignificant state involvement: (i) **businesses** that the government **substantially regulates** or to which it grants a **monopoly**; (ii) **nursing homes** that accept **Medicaid**; and (iii) **schools** receiving government **funds** but are operated by a **private corporation**.

Question 40

**Takings Clause** What is the takings clause generally?

Answer 40

The **Takings Clause** is a check on the power of **eminent domain**. It provides that the government may not take **private property** for **public use** without **just compensation**.

Question 41

**Takings Clause** What types of property and types of interests does the Takings Clause apply to?

Answer 41

It includes real property, tangible personal property, and intangible property. It includes fee simple, easements, leaseholds, liens, and the rights of a property owner (e.g., to control access).

Question 42

**Takings Clause** What is a regulatory taking? What is a per se regulatory taking?

Answer 42

Generally, a regulation that **adversely affects** a person's property interest is **not** **a taking**. However, it is possible for a regulation to rise to the level of a **per se taking**: (i) **permanent physical** **occupation** or (ii) **permanent total loss of economic value**.

Question 43

**Takings Clause** What are exactions and are they takings?

Answer 43

**Exactions** (promises from a developer) are **not** takings if there is an **essential nexus** between legitimate state interests and the conditions imposed; and if there is **rough proportionality** between the burden imposes and impact of proposed development.

Question 44

**Takings Clause** What is just compensation?

Answer 44

**Just compensation** is the **fair market value** **at the time of the taking** measured in terms of the **loss to the owner** (not the benefit to the government).

Question 45

**1A Freedom of Speech** What ability does the government have to regulate speech and what does it depend on?

Answer 45

The government's ability to regulate speech **depends on the forum** in which the speech takes place.

Question 46

**1A Freedom of Speech** What is a “time, place, and manner” restriction?

Answer 46

Generally, a **“time, place, and manner”** restriction involves the **shifting** of speech from one time and place to another or to another manner.

Question 47

How is the 1st Amendment made applicable to the states?

Answer 47

The 1A is applicable to the states through the **14A**. In terms of free speech rights, it protects the freedom of speech as well as the freedom *not* to speak.

Question 48

**1A Freedom of Speech** What is protected speech?

Answer 48

**Protected speech** can include **written**, **oral**, and **visual** communication, as well as activities such as **picketing** and **leafleting**.

Question 49

**1A Freedom of Speech** What is a traditional public forum, and when can the government regulate speech there?

Answer 49

A **traditional public forum** is one that is historically associated with expression, such as **sidewalks, streets, and parks**. In this setting, the government may **only** regulate speech if the restrictions: (i) are **content-neutral** as to both subject matter and viewpoint; (ii) are **narrowly tailored** to serve a **significant** governmental interest; and (iii) leave open ample **alternative channels** for communication. An **absolute prohibition** of a particular type of expression will be upheld only if **narrowly drawn** to accomplish a **compelling** governmental interest.

Question 50

**Regulation of Speech** What degree of protection does **expressive conduct** (symbolic speech) receive?

Answer 50

Expressive conduct (**symbolic speech**) gets a lesser degree of protection than speech. A regulation of expressive conduct is upheld if: (i) it is within the government's **power to enact**; (ii) furthers an **important governmental interest**; (iii) the interest is **unrelated to suppression** of ideas; and (iv) the burden on speech is **no greater than necessary**.

Question 51

**Regulation of Speech** What does overbreadth mean?

Answer 51

A law that **burdens a substantial amount of speech or other conduct** is **overbroad** and therefore **void**.

Question 52

**Regulation of Speech** What is vagueness?

Answer 52

A statute **void** for **vagueness** **fails to provide fair notice of what is prohibited**.

Question 53

**Regulation of Speech** What are prior restraints?

Answer 53

A **prior restraint** is regulation of speech that occurs in **advance** of its expression and is generally **presumed unconstitutional**. The **burden** is on the **government** to prove that the material to be **censored** is **not protected**. **Exception:** The exceptions require at a minimum that: (i) there is a **particular harm** to be avoided and (ii) certain **procedural safeguards** are provided to the speaker (standards are **narrow, reasonable and definite**; prompt **injunction**; prompt **determination of validity**).

Question 54

**Regulation of Speech** What is unfettered discretion?

Answer 54

A law or regulation that permits a **government official** to **restrict speech** must provide **definite standards** of how to apply the law so as to **prevent unfettered discretion**.

Question 55

**Regulation of Speech** When can the government compel a private entity to permit speech?

Answer 55

A state can compel a **private entity** to permit the exercise of free speech on premises when the private entity is **open to the public** and the message is **not likely to be attributable to the private entity** (e.g., a shopping mall).

Question 56

**Regulation of Speech** What is government speech?

Answer 56

**Government speech** need **not** be **viewpoint-neutral**, but is **subject** to the **Establishment Clause**.

Question 57

**Regulation of Speech** What is campaign related speech?

Answer 57

For **contributions**, statutes limiting campaign contributions are subject to **intermediate scrutiny**. For **expenditures**, statutes limiting campaign expenditures during a campaign are subject to **strict scrutiny**.

Question 58

**Regulation of Time, Place, and Manner** What is a traditional public forum?

Answer 58

A **traditional** **public forum** is historically associated with expression (e.g., sidewalks, streets, and parks). In this forum, the restrictions generally must: (i) be **content-neutral** as to both subject matter and viewpoint; (ii) be **narrowly tailored** to serve a **significant government interest** (but relaxed); (iii) leave open **ample alternative channels** of communication.

Question 59

**Regulation of Time, Place, and Manner** What is a designated public forum?

Answer 59

A **designated** **public forum** is **not historically** used for speech-related activities, but which the **government has opened for such use** (e.g., civic auditoriums, publicly owned theaters, and school classrooms afterhours). In this forum, the restrictions generally must: (i) be **content-neutral** as to both subject matter and viewpoint; (ii) be **narrowly tailored** to serve a **significant government interest** (but relaxed); (iii) leave open **ample alternative channels** of communication.

Question 60

**Regulation of Time, Place, and Manner** What are the standards for injunctions in public forums?

Answer 60

For **content-neutral injunctions**, the test is whether it burdens no more speech than is **necessary** to achieve an **important** governmental interest. For **content-based injunctions**, it must be **necessary** for the government to achieve a **compelling** governmental interest.

Question 61

**Regulation of Time, Place, and Manner** What is a limited public forum? (A.K.A. a nonpublic forum)

Answer 61

A **limited public forum** is all public property that is **not** a traditional or designated public forum. In this forum, the government **may** regulate speech-related activities as long as the regulation is: (i) **viewpoint-neutral** and (ii) **reasonably related** to a **legitimate** governmental interest. (Viewpoint-neutral means the government cannot allow only one side of an issue to be presented)

Question 62

**Regulation of Content** What is the general rule?

Answer 62

The **general rule** is that regulations of content, whether on its face or by application, are subject to **strict scrutiny**. **Exceptions:** Obscenity/child pornography; incitement to violence; fighting words; defamation; commercial speech

Question 63

**Regulation of Content** What is the exception for obscenity?

Answer 63

**Obscenity and child pornography are NOT protected by the First Amendment**. **The obscenity test**: the average person, applying contemporary community standards, must find that the material, taken as a whole – **appeals to the prurient interest** + **depicts sexual conduct in a patently offensive way** + **lacks serious literacy, artistic, political, and scientific value**.

Question 64

**Regulation of Content** What is the exception for incitement to violence?

Answer 64

A state **may** forbid speech that **advocates the use of force or unlawful action** if: (i) it is **directed** to incite/produce imminent lawless action; and (ii) it is **likely** to **incite/produce imminent lawless action**.

Question 65

**Regulation of Content** What is the fighting words exception?

Answer 65

**Fighting words** are words that **by their very nature** are **likely to incite** an **immediate breach of the peace**. Words that are simply annoying or offensive are **not** fighting words.

Question 66

**Regulation of Content** What is the defamation exception?

Answer 66

If P is a **public official or figure**, or a defamatory statement involves a **matter of public concern**, then in addition to the elements of defamation, P must prove **fault and falsity** of the statement. For **public figures**, P must prove D acted with **actual malice**. For **public concerns** (private figure + public concern), P need only prove **negligence** with respect to the falsity of the statement.

Question 67

**Regulation of Content** What is the commercial speech exception?

Answer 67

Restrictions on **commercial speech** are subject to a four-part test: (1) the commercial speech must concern **lawful activity** and be **neither false nor misleading**; (2) **substantial government interest**; (3) the regulation **directly advances** that interest; (4) **narrowly tailored** (meaning reasonable fit).

Question 68

**Regulation of the Media** What is the general rule? What is the general standard?

Answer 68

Generally, the media has **no greater 1A rights** than the general public. Generally, regulation of the **right to publish** about **matters of public concern** is subject to **strict scrutiny**. **Other considerations**: **Gag orders** rarely upheld because prior restraints; permitted to publish **illegally obtained private info** if a **third party** (**unknown** to the publisher) obtained the info and involves a matter of **public concern**.

Question 69

**Regulation of Association** What is the general freedom of association?

Answer 69

The **freedom of association** generally protects the right to **form or participate** in any group, gathering, club, or organization; however, infringement **may** be justified by **compelling state interest**.

Question 70

**Regulation of Association** What is the general rule for public employment?

Answer 70

An individual generally **cannot be denied** **public employment** based simply upon membership in a **political organization**. A person may only be punished or deprived of public employment if that person is: (1) an **active member** of a **subversive organization**; (2) has **knowledge** of the **illegal activity**; and has **specific intent to further** those illegal objectives.

Question 71

**Regulation of Association** Can a state require semi-closed primary systems?

Answer 71

**Yes**, a state can require a **semi-closed primary** system **even if** the party wants to permit anyone to vote.

Question 72

**Regulation of Association** May a state prohibit independents from voting in a primary?

Answer 72

**No**, a state may **not** prohibit a political party from allowing **independents** to vote in its primary.

Question 73

**Regulation of Association** Can a state restrict ballot access to a general election?

Answer 73

**Yes,** a state **may refuse** to grant a party's candidate **access** to the **general election ballot** ***unless*** the party demonstrates **public support** (e.g., signatures, registrations, previous success).

Question 74

**Regulation of Association** Are criminal penalties of association allowed?

Answer 74

**Generally no**, a statute that **criminally punishes** mere **membership** in an association violates the **First and Fourteenth Amendments**. Such membership may **only** be criminalized if: (1) the group is **actively engaged** in **unlawful activity** or is engaging in advocacy that passes the **clear and present danger test**; and (2) the defendant **knows** and **specifically intends to further** the group's illegal activity.