constitutional law

Answer 1

There is no taxpayer standing to challenge how tax dollars are
spent by the federal or state government because the interest is too remote
**(Note: a person may always challenge their personal tax bill.) **

Answer 2

Exception: The only exception is if the taxpayer challenges:
1. a law enacted under Congress’s taxing and spending powers, and
2. the plaintiff alleges that Congress exceeded a specific constitutional
limit on the power.
**Bar Exam Tip: what this almost always means is that the plaintiff alleges an Establishment Clause challenge to a taxing and spending
law. **

Question 3

: If plaintiff alleges that Congress wrongfully used government funds to restore a historic church in violation of the Establishment Clause, is taxpayer standing appropriate?

Answer 3

Yes, because the law was enacted under Congress’s taxing and spending powers and the plaintiff is alleging that Congress exceeded a specific limit (by violating the Establishment Clause).

Question 4

If plaintiff alleges that Congress wrongfully gave land to a new church in
violation of the Establishment Clause, is taxpayer standing appropriate?

Answer 4

No, because Congress’s action was not enacted under its taxing and spending powers. It was enacted under its property powers.

Answer 5

Note: generally, there is no taxpayer standing,
unless P alleges an Establishment Clause challenge to a taxing and spending law.)

Question 6

3 test to determine whether a law voilates the establishment clause

Answer 6

(1) the state must have a secular legislative purpose,
(2) the primary effect must** not be to advance nor inhibit religion**, and
(3) it must not foster excessive governmental entanglement with religion.

**Excessive entanglement occurs when the government would have to keep close surveillance on its funds (for example, grants for salaries of teachers that only teach secular subjects). **

action will only be upheld if it meets all 3 elements of the lemon test and only regulates practice of religion not beliefs. gov can never regulate beliefs

Answer 7

Placing the Ten Commandments in a public school voilates the establishment clause

However, placing it as a monument with many other monuments in the state capitol is permitted.

Answer 8

Government aid to religious schools
(1) Providing bus fare, money for textbooks, standardized tests, lunch, library materials, and interpreters for the deaf is constitutional. The goal is to help the children rather than the school.
(a) However, the state cannot give money for actual religious indoctrination (this is excessive entanglement), including paying a portion of private school teachers’ salaries.
(2) If the government gives a deduction for taxes to all parents based on actual expenditures for children who attend a public, private, or religious school, it will be upheld.

The government is also constitutionally permitted to give vouchers to parents which allow them to send their children to religious schools instead of public schools because aid is neutral and parents are themselves choosing to send their children to religious schools.

Question 9

establishment clause issue

Answer 9

what type of law is at issue?
content nuetral or one that fovors one religion over the other ?

content nuetral - apply lemon test
favors one religion over the next - apply strict scrutiny -If the government can meet its burden, the law is constitutional and will be upheld.

Answer 10

the establishment clause on its face prevents congress from establishing a religion. the establishment clause applies to the local government via the fourteenth amendment through the due process clause

Answer 11

for contract clasie to apply the legislation must substantially impairs preexisting obligations

Answer 12

Individuals may be constitutionally required to register and submit to examinations reasonably required by the selective service system to facilitate the conscription of manpower for military service

Question 13

war power

Answer 13

congress has wide war powers authority. the draft and selective service systems as been uphels as a proper exercise of congress war power

Question 14

free exercise clause

Answer 14

Beliefs themselves are absolutely protected. A government may not punish or burden an individual based on their genuinely-held religious beliefs.
The government looks at the person’s sincerity, not whether the beliefs are true or false

Answer 15

Unlike beliefs, freedom to act in a certain way is not absolutely protected.
When the individual engages in conduct that is motivated by his religious beliefs, the state may regulate or prohibit the activity so long as the regulation is neutral and of general applicability

Answer 16

However, the regulation cannot be motivated to prevent, burden, or** interfere** with religion/practice of a religion.

Answer 17

if there is a federally-owned enclave located within a state (e.g., a national park or military base), Congress’s civil and criminal regulations are enforceable as to that enclave, and take precedence over any inconsistent state regulation

Answer 18

So whenever you see Congress reserving to itself (or to a panel appointed by it) the power to either appoint or remove a Cabinet-level officer, a member of a federal commission with executive-type powers, or an ambassador, you will know that this is a separation-of-powers violation.

Answer 19

the hardest part would be recognizing that members of the
commission in question hold powers that are** primarily executive,** triggering the rule that only the President, not Congress, may appoint the members.

Answer 20

: Congress establishes the Federal Election Commission, which enforces federal campaign laws. The Commission has power to bring civil actions against violators. The statute establishing the Commission allows Congress to appoint a majority of the Commission’s members. Held, the tasks performed by the Commission are primarily executive, and its members are “officers of the United States.” Therefore, the members must be appointed by the President, not Congress. [Buckley v. Valeo]

Question 21

presidents power

Answer 21

President’s power to remove with or without cause:

Answer 22

The President may as a general matter remove any executive appointee without cause.
The only exceptions are that Congress may require the President to have cause in order to remove (1) an officer who is appointed pursuant to a statute specifying the length of the term of office; and (2) an officer who performs a judicial or quasi-judicial function, such as an administrative judge (putting aside the requirement of impeachment as the sole means
of removing federal judges appointed for life under Article I)

Question 23

congress has no power to remove

Answer 23

Congress may not even indirectly keep the power to remove an executive officer, by entrusting to a congressionally-appointed panel or commission the right to remove that officer.

Answer 24

The facts tell you that the Director holds a “Cabinet-level”
post, so that automatically makes him a principal federal officer. Only the President may remove such an officer. Since a majority of the Commission’s members are picked by Congress, the Commission’s action removal action is deemed to be by Congress rather than by the President (even though the President appointed a minority of the members).
The fact that the removal is for cause does not make any difference.

Answer 25

However, Congress can to some extent limit the power of the President to remove an officer, if Congress specifies a term of office and then provides that removal is allowable only for cause

Answer 26

Federal judges cannot be removed by either Congress or the President.

Answer 27

The only way to remove a sitting federal judge is by formal impeachment proceedings

Answer 28

there cannot be a procedural due process problem unless government is taking a person’s life, liberty or property. In other words, there is no general interest in having the government behave with fair procedures.
Example: A city hires for an opening on its police force. The city can be as arbitrary and random as it wants, because as we’ll see, an applicant for a job has no liberty or property interest in obtaining the job. Therefore, the city doesn’t have to give the applicant a hearing, a statement of reasons why she didn’t get the job, a systematic test of her credentials, or any
other aspect of procedural fairness.

Answer 29

Always distinguish between “substantive” due process and “procedural” due process. Procedural due process applies only where individual determinations are being made

Answer 30

Embedded “standing” issue: The MBE examiners will sometimes embed a “standing” issue into what seems to be solely a question about whether a person is entitled to particular due process procedures. As we’ll see later (infra, p. 106), a person won’t be entitled to a particular type of hearing
if the providing of that hearing could not plausibly have changed the outcome, i.e., led to a redressing of the injuring for which the person is seeking redress.
Example: A state requires that bar applicants graduate from an ABA-approved law school.
The state refuses to give Applicant, who has passed the bar exam, a hearing to show why he should be admitted notwithstanding his having graduated from a non-ABA-approved law school. He claims that denial of such a hearing violates his procedural due process rights.
The ABA requirement is constitutional, and therefore giving the hearing wouldn’t make any difference to the outcome. Consequently, Applicant doesn’t have federal-court standing to argue that he is constitutionally entitled to the hearing, because he hasn’t suffered any “injuryin fact” due to denial of a hearing

Answer 31

The newspaper has a first amendment right to publish lawfully obtained truthful information of public interest regardless of whether the reporter did or did not promise to publish