Constitutional Law

Question 1

Justiciability

Answer 1

Article III limits federal court jx to actual cases and controversies (RAAAMPS):

• Ripeness: requires an actual, or immediate threat of harm (not too early)
• Mootness: legal proceedings must have some effect (not too late)
  
  • Exceptions: class action, cases “capable of repetition yet evading review” (e.g., abortion)
• Standing: a party bringing suit must have a concrete stake in the action
• Other limitations: abstention (leave state interests to states), adequate independent state law, advisory opinions, political questions

Question 2

Standing special categories

Answer 2

• Taxpayers: very limited, cannot bring suit to challenge expenditures unless they violate 1A establishment clause
• Organizations: will have standing if members have standing and the interests are tied to org’s purpose
• Third parties: will not have standing unless litigant and 3P were parties to an exchange or transaction

Question 3

11A

Answer 3

State sovereign immunity.

• In federal court, state governments cannot be sued for money damages by private citizens or foreign country
• In state court, state governments cannot be sued for money damages by own citizens unless
  
  • State consents
  • Congress expressly abrogates under 13, 14, or 15A
• Exceptions
  
  • Suits for injunctive relief against state
  • Money damages against a state officer in personal capacity

Question 4

Congressional powers

Answer 4

For a congressional activity (e.g., a federal law) be constitutional, it must be justified by an enumerated congressional power:

• Commerce power
• Taxing and spending
• Necessary and proper clause
• Other powers: war, property, elections, aliens and naturalization
• Enforcement powers: may enact legislation to enforce guarantees of 13, 14, 15A
  
  • Note: No plenary police power!

Question 5

Commerce Power

Answer 5

• Congress can regulate channels and instrumentalities of interstate commerce + activities that have a substantial effect on interstate commerce
• Substantial economic effect
  
  • For economic and commercial activity, substantial economic activity is presumed even if intra-state
  • Requires rational basis for concluding that activity in aggregate would effect interestate commerce
  • Must establish interstate commerce effect for non-commercial activity
• Exception for “comprehensive schemes:” If Congress enacts a program that aims at interstate or economic activity, it can sweep up isolated instances of intrastate non-economic activity if those are necessary to make the program effective and have a substantial national economic effect

Question 6

Taxing and spending power

Answer 6

• Taxing: Congress may tax if reasonably related to raising revenue
• Spending: Congress has the power to spend for general welfare
  
  • Can condition federal funding to states on state regulating particular activity, provided award of funds is not coercive

Question 7

Dormant commerce clause

Answer 7

Rule: In the absence of federal regulation, state regulation on commerce is valid so long as there is no discrimination against out-of-state commerce or an undue burden on interstate commerce. Applies to out-of-state individuals AND corporations

• Exceptions:
  
  • For facially neutral regulations: valid if burden on interstate commerce < promotion of legitimate interest
  • For facially discriminatory regulations: important local interest is being served and no other non-discriminatory means available (e.g., blight on crops from certain state)
  • Where state is acting as a market participant rather than market regulator
  • Traditional government function (e.g., waste management)

Question 8

Comity clause

Answer 8

AKA P&I clause of Article IV

Rule: no state shall deprive a citizen of another state the privileges and immunities it accords its own citizens

• Does not apply to corporations
• Only applies to fundamental rights or essential activities
• Private employment is a fundamental right; recreational activities are not protected
• Discrimination may be justified by a “substantial reason”
  
  • Non-residents caused the problem
  • No less restrictive means to address problem

Question 9

Preemption

Answer 9

Supremacy clause: federal laws override inconsistent state laws

• Express preemption: Congress explicitly prohibits state laws or has exclusive power
• Implied: Congress intended to occupy the field or a state law is in conflict with federal objectives

Question 10

10A police power

Answer 10

• States have broad power to regulate areas traditionally w/in power of states:
  
  • e.g., affecting health, safety, welfare, morals
  • Limited by contrary fed power (laws, tax immunity, enumerated powers, foreign affairs, exclusive jx)

Question 11

Anti-commandeering doctrine

Answer 11

Congress (and likely executive orders) cannot force state legislatures pass a law or require state executive officials (e.g., police) to enforce federal law.

• Mere prohibitions are not commandeering
• Spending power can indirectly regulate state if
  
  • Condition for money is clear
  • Not unduly coercive

Question 12

State action requirement

Answer 12

Constitution generally protects against governmental action at not actions of private individuals (except 13A—slavery)

• Applies to govn’t at any level (federal, state, local)
• Exceptions:
  
  • Significant state involvement: Private action is closely encouraged and supported by the state (state hand in private glove); e.g., court seeks to enforce a racially restrictive covenant, or statute requires segregated public toilets
  • Public function theory: Private actor is delegated a function traditionally reserved to states (company town, not mall)
  • Mutually beneficial relation derived from unconstitutional behavior: e.g., state gets increased revenues and rents from privately owned restaurant that discriminates

Question 13

Procedural due process

Answer 13

Rule: an individual may not be deprived of life, liberty, or property without due process. Via 5A and 14A.

• Due process: notice + opportunity to be heard
  
  • Matthews test: balance the importance of individual’s interest, government interest in efficiency, and the value of procedural safeguards
    
    • Need pre-termination hearing: welfare benefits
    • Post-termination hearing OK: public employment, disability benefits
• Liberty: significant restraint on physical freedom or exercise of a fundamental right
• Property: legitimate entitlement to the continued receipt of a benefit—more expansive than just material belongings
  
  • Public education, public employment, welfare, licenses

Question 14

Substantive due process

Answer 14

Applies when a law infringes generally on a right of all persons. Via 5A.

• Fundamental rights: subject to strict scrutiny
  
  • Voting, travel, and privacy (marriage, sexual relations, child rearing, related persons living together)
• Nonfundamental rights: subject to rational basis
  
  • Business, taxation, lifestyle, zoning

Question 15

Strict scrutiny

Answer 15

Test: Narrowly tailored to achieve a compelling government interest

• Burden on government to show necessity of law
• Applications:
  
  • Fundamental rights
  • Suspect classifications: race, ethnicity, national origin, alienage (for state law only)

Question 16

Intermediate scrutiny

Answer 16

Test: substantially related to an important government interest.

• Applications:
  
  • Gender
  • Illegitimate children

Question 17

Rational basis

Answer 17

Test: rationally related to a legitimate government interest

• Challenger bears burden of showing law is arbitrary or irrational
• Applications:
  
  • Any regulation that does not bear on a fundamental right or suspect class

Question 18

Equal protection

Answer 18

Applies when a government action treats similarly situated people dissimilarly or singles out a particular class of persons. Via 14A.

Question 19

Race discrimination

Answer 19

Subject to strict scrutiny.

• Mere disparate effect between races is OK if no discriminatory purpose behind the law (i.e., the disparate effect occurs as a result of private choice and social factors)
• Affirmative action may satisfy strict scrutiny. Valid compelling interests:
  
  • Remedy state’s own (not general societal) past discrimination w/ narrow tailoring of benefits to those actually affected, or
  • Diversity in higher education (post-secondary), but cannot use quota or quantified points

Question 20

Alienage discrimination

Answer 20

Subject to strict scrutiny.

• Exceptions:
  
  • Public function (state may require citizenship for state jobs that directly affect politics): rational basis
  • Undocumented aliens: rational basis
  • Alien children: intermediate scrutiny
  • Note: immigration policies (e.g., 5yr residency req for fed Medicare benefits) only require rational basis

Question 21

Gender discrimination

Answer 21

Subject to intermediate scrutiny.

• Gov’t must show “exceedingly persuasive justification,” close to strict scrutiny
• Affirmative action: will satisfy intermediate scrutiny if remedial (even for past, societal reasons) or benign discrimination

Question 22

Illegitimate children

Answer 22

Subject to intermediate scrutiny.

Question 23

Affirmative action requirements

Answer 23

• For race:
  
  • Must remedy state’s own (not general societal) past discrimination w/ narrow tailoring of benefits to those actually affected
  • Diversity in higher education (post-secondary) is a complelling interest, but universities cannot use quota or quantified points
• For gender:
  
  • Will satisfy intermediate scrutiny if remedial purpose is broad/societal/benign discrimination

Question 24

Takings clause

Answer 24

Government cannot take private property for public use without just compensation. 5A applied to states via 14A.

• Public use: rationally related to a conceivable public purpose
• Just compensation: fair market value at time of taking
• Takings
  
  • A permanent physical invasion, even if minor
  • For temporary, balance circumstances: planners’ good faith, reasonable expectations of owners, length of delay, actual economic impact
  • Can apply to non-possessory interests, like easements
  • Mere regulation ≠ taking unless it leaves no economically viable use for the property

Question 25

Establishment clause

Answer 25

The government can make no law respecting the establishment of religion; laws that discriminate against religious speech or among religions are subject to strict scrutiny.

• Focus on whether there is a coercive endorsement of religion that may override individual choice

Question 26

Lemon test

Answer 26

Test for valid government action that benefits religion (i.e., action does not violate the Establishment clause):

1. Action has a secular purpose
2. Primary effect neither inhibits nor advances religion
3. Does not result in “excessive government entaglement” with religion

Question 27

Free exercise clause

Answer 27

• Freedom to believe in a religion is absolutely protected;
  
  • Government may not deny benefits or impose burdens based on religious belief
  • May not make determinations about reasonableness of a religious belief
• Freedom to act on religious belief is less protected
  
  • Government may not intentionally target religious conduct, but a neutral law of general applicability that impacts religious conduct is subject to rational basis scrutiny
  • e.g., peyote prohibitions are valid

Question 28

Free speech clause

Answer 28

Government cannot abridge freedom of speech.

• Speech: any expressive conduct, including activities or refraining from speaking

Question 29

Facial attacks on free speech

Answer 29

• Prior restraint: government action that restricts speech before it occurs
  
  • Disfavored; government must narrowly tailor and show that specific harm will result from the speech
• Overbreadth: Ordinance is overbroad if it prohibits activities that are protected under 1A
• Vagueness: Reasonable person cannot tell which speech ordinance applies to
• Unfettered discretion: must have specific articulated standards; cannot leave discretion up to government officials

Question 30

Content-based regulations

Answer 30

Generally, content-based regulations trigger strict scrutiny.

• Exceptions:
  
  • Symbolic speech
  • Political speech
  • Commercial speech
  • Defamation
  • Obscenity
  • Incitement to violence

Question 31

Symbolic speech

Answer 31

Government actions that limit expressive conduct are valid if they further an important government interest unrelated to speech suppression and burden is no greater than necessary

• e.g., prohibition on destroying draft cards

Question 32

Political speech

Answer 32

• Contributions to campaigns: intermediate scrutiny
  
  • Not allowed: limitations aimed at “equalizing” financial resources of candidates or leveing the playing field
• Expenditures by campaigns: strict scrutiny
• Note: Applies to both individuals and corporations.

Question 33

Obscenity

Answer 33

• Definition:
  
  • Prurient interest
  • Patently offensive (community standard)
  • Lacks serious literary, artistic, political, scientific value (national standard)
• Pornography:
  
  • Possession in one’s home is protected
    
    • Exception: child pornography
  • State may limit sale, purchase, receipt, transport, and distribution of obscene materials

Question 34

Commercial speech

Answer 34

• Protected if:
  
  • Not false or misleading
  • Does not relate to unlawful activity
• Can be regulated to the extent that:
  
  • Serves significant government interest
  • Directly advances that interest
  • Narrowly tailored

Question 35

Incitement to violence

Answer 35

Fighting words, hostile audience, and true threats can theoretically be limited, but are usually struck down for vagueness/overbreadth

Question 36

Public forum

Answer 36

Streets, parks, sidewalks, and designated public forums

• Restrictions must be:
  
  • Content, viewpoint neutral
  • Narrowly tailored to serve significant interest
  • Leave open alternative channels

Question 37

Nonpublic forum

Answer 37

Public property that is not generally open for use, e.g., government office or prison.

• Restrictions are OK if:
  
  • Viewpoint neutral and
  • Reasonably related to a legitimate government interest

Question 38

Content-neutral restrictions

Answer 38

AKA TPM restrictions

• Lawfulness depends on the forum:
  
  • Public forum: must be content and viewpoint neutral, narrowly tailored, and leave open alternative channels
  • Nonpublic forum: must be viewpoint neutral and reasonably related to legitimate government interest

Question 39

Freedom of association

Answer 39

Laws that prohibit or require disclosure in a group must meet strict scrutiny.

• Punishment based on political association requires:
  
  • Active membership
  • With knowledge of the group’s subversive nature and
  • Intent to further the illegal objectives of the group

Question 40

Requirements for standing

Answer 40

• Injury: concrete and particular
• Causation: the injury was caused by a violation of a constitutional or federal right
• Redressability: the requested relief must prevent or redress the injury