Constitutional Law

Question 1

Takings

Answer 1

2 types:
1. Eminent Domain: Government can take private property for public use with just compensation

2. Regulatory Takings: Government regulate land use, but goes too far and must pay owner deprived of reasonable investment backed expectations.

Per se: Permanent physical invasion of private property regulation causes total economic deprivation of value

Question 2

Dormant Commerce Clause (Exceptions)

Answer 2

1. Market Participant Doctrine: state may discriminate when it’s a market participant, not market regulator
2. Important government interest: must further important non-economic government interest and there is no reasonable non-discriminatory alternative
3. Congressional approval to do so

Question 3

Right to Privacy

Answer 3

1. Implied fundamental right
2. Make certain decisions about one’s own body
3. Some family matters

Test: strict scrutiny

Case ex: Contraceptive, teaching kids foreign language, procreation, living w/ traditional family members, marriage, consensual adult intimacy

Question 4

Obscenity

Answer 4

1. Can be regulated and even prohibited by the government
2. An utterance is obscene if it: a) appeals to purient interest, b) is patently offensive, c) S.L.A.P.S

lacks Serious Literary, Artistic, Political, or Scientific value

Test: Rational basis

Question 5

Establishment Clause

Answer 5

No promoting or disfavoring specific religions vs. atheism
A) Some government aid to religious schools okay
B) Some religion in public schools okay

Question 6

Suspect Classifications

Answer 6

Race
Uncitizenship
National origin

Test: Strict Scrutiny
compelling, narrowly tailored

Question 7

Right to Vote

Answer 7

Government may NOT
1. Deny the vote
2. Dilute the significance of a vote

Test: Strict Scrutiny

Question 8

Dormant Commerce Clause

Answer 8

1. If Congress is silent and has not preempted the field
2. States regulate commerce on a local issue; then
3. States cannot discriminate;
4. Against Interstate Commerce OR
5. Place undue burden on IC

SN: States may not favor in State IC use undue burden test when no discrimination

Test: Does burden outweigh benefits to state?

Question 9

Justiciability

Answer 9

Ripeness - case not ready, no injury yet

Mootness - controversy ended

PQ - issue of another branch

Standing - injury in fact, causation redressability

Question 10

Procedural Due Process

Answer 10

1. If the government infringes on life, liberty or happiness, they must provide notice, hearing or combination of the two

SN: Deprivation is intentional not negligent or inadvertent

Question 11

Congressional Spending Power

Answer 11

1. Congress can spend
2. For the general welfare and
3. Reasonable conditions on the spending are permissible

SN: Congress can encourage states to act by spending

Question 12

Article 4, Section 2
P&I

Answer 12

A state may NOT
1. Discriminate against non-state citizens
2. regarding fundamental interest, UNLESS
3. State can show its action is substantially related to a substantial state interest

SN: limit states discrimination against out of state residents

Question 13

Commerce Power

Answer 13

Regulate commerce:
Instrumentalities of IC
Channels of IC
Substantially Affect IC

Tip: IC is federal, DCC is state

Question 14

Freedom of Expression Overview

Answer 14

Type 1 Protection:
a) fully protected –> ideas and politics
b) partially protected –> commercial and indecent speech
c) unprotected –> fighting words, obscenity, defamation threats, solicitation, conspiracy, etc.

Type 2 Time, Place, Manner: (indirect) location matters
a) public forum
b) designated public forum
c) non-public forum

Type 3 Symbolic Speech

Question 15

Prez Removal Power

Answer 15

may remove any executive appointee without cause
i.e., ambassador or cabinet member

must have cause to remove executive officers with fixed terms and officers performing judicial or quasi-judicial functions

Question 16

Congress Investigatory Power

Answer 16

Necessary and Proper Clause permits congress to conduct investigations incident to its legislative power

McGrain v. Daugherty

Question 17

War & Defense Powers

Answer 17

Congress may
1. declare war
2. raise and support armies
3. provide and maintain a navy
4. organize, arm, discipline and call forth a militia

Question 18

Abstention

Answer 18

The federal court may abstain or refuse to hear a particular case, when there are undecided issues of state law presented

Question 19

Sovereign Immunity
11th amendment

Answer 19

Government may not be sued without its consent

11th amendment is specific to states

Question 20

Standards of Review

Answer 20

RBT - Legitimate government interest

Intermediate Scrutiny - substantially related to an important government interest

strict scrutiny - is necessary to achieve a compelling government interest

Question 21

State taxation

Answer 21

state taxation of IC is permissible as long as tax does not discriminate against or unduly burden IC

Question 22

Equal Protection Challenges

Answer 22

RBT:
age, alienage (Fed), Disability, Wealth

Intermediate:
gender, Illegitimacy, sexual orientation, undocumented alien children

Strict:
alienage (state), domestic travel, national origin, race, voting

Question 23

Political Question (PQ)
Part 1

Answer 23

a) whether there is textually demonstrable constitutional commitment of the issue to coordinate political department

b) lack of judicially discoverable and manageable standards for resolving it

c) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion

Question 24

Political Question (PQ)
Part 2

Answer 24

d) the impossibility of a courts undertaking independent resolution without expressing lack of respect due coordinate branches of government

e) an unusual need for unquestioning adherence to a political question already made

f) the potential for embarrassment from a multifarious pronouncements by various departments on one question

Question 25

Executive* Immunity & Privilege

Answer 25

1. complete decision making immunity during official act
2. no immunity from conduct before or after presidency
3. partial presidential privilege for disclosure of confidential communications

Question 26

Speech
Time, Place, Manner

Answer 26

The government may place reasonable restraints on the time, place, and manner of speech in public forums

i.e., picketing, broadcasting