Constitutional Law

Question 1

Procedural Due Process

Answer 1

The 5th and 14th amendments afford individuals with procedural due process, which requires states to act with adequate and fair procedure before depriving a person of life, liberty, or property. Proper process involves: (1) notice; (2) and opportunity to respond before the termination of that interest; and (3) a neutral decision maker.

Question 2

Taxing and Spending

Answer 2

Congress may tax and spend for the general welfare, but they may not regulate the general welfare. They can, however, add conditions to such taxing and spending so long as the conditions are: (1) clearly stated, (2) relate to the purpose, (3) constitutional, and (4) not unduly coercive.

Question 3

Privileges and Immunities of Article IV

Answer 3

Protects state residents from being discriminated against by other states in the realm of fundamental rights or other essential activities (commercial/right to make a living).

1. has the state discriminated against out of staters with regard to the privileges and immunities it affords its own citizens?
2. if yes, if the discrimination justified in that it is necessary to achieve an important government interest and no less restrictive means are available.

Question 4

Takings Clause

Answer 4

The fifth amendment provides that the government cannot take property from an individual for public use without paying just compensation. The compensation must be the fair market value at the time of the taking.

The taking can be physical. If temporary then consider the degree, length, intention, foreseeability of result, the severity, and the character.

Exceptions include emergency or when a municipality conditions building or development permits.

Taking can also be regulatory to where it denied the owner of all economically viable use. If f just decreasing it, then usually not a taking, but consider: (1) economic impact, (2) investment-backed expectation, and (3) public interest.

Question 5

Levels of Authority

Answer 5

Constitution > Federal law/Treaties > Executive Agreements > State law.

If the federal law and treaty conflict, then the last in time trumps

Question 6

Rational Basis Review

Answer 6

Applies when there is no fundamental right or suspect/quasi-suspect class involved – including wealth. The standard of review is whether the law is rationally related to a legitimate government interest

Question 7

Strict Scrutiny

Answer 7

When there is a fundamental right or suspect class involved (race, national origin, or alienage), then the law must be necessary to achieve a compelling government interest

Question 8

Intermediate Scrutiny

Answer 8

When a quasi-suspect class is involved (legitimacy or gender), then the law must be substantially related to further an important government interest

Question 9

Sovereign Immunity

Answer 9

state is forbidden from suing the US without its consent. Congress can pass legislation permitting the US to be sued by states in given situations. Although officers may sometimes be sued, this will only be granted if the officer acts beyond his statutory powers, or the valid power was exercised in an unconstitutional manner.

Question 10

Dormant Commerce Clause

Answer 10

State law cannot unduly burden interstate commerce.

If a state law facially discriminates against out of staters therefore burdening interstate commerce, then it is presumptively invalid unless it is shown to be necessary to achieve an important, non-economic state interest and there are no reasonable, non-discriminatory alternatives available.

If the law does not discriminate against out of staters but still burdens interstate commerce, then it will be valid unless the burdens outweigh the benefits and there are no less restrictive alternatives available.

Question 11

Delegation of Congressional Authority

Answer 11

Congress can delegate their rule-making authority to federal agencies through statutes that provide intelligible principles governing the exercise of that authority. The Supreme Court has been very deferential in applying the intelligible principle requirement.

Question 12

Federal Police Powers ??

Answer 12

There is no such thing as a federal police power (health, safety, and general welfare). Rather, this is reserved for the states. However, Congress does have police powers over federal lands, Native American reservations, and Washington, D.C.

Question 13

Commercial Speech Test

Answer 13

In determining whether a regulation on commercial speech is valid, consider:
1. whether the commercial speech concerns lawful activity that is not misleading or fraudulent
2. whether the regulation serves a substantial government interest
3. whether the regulation directly advances that interest
4. whether it is narrowly tailored to serve the substantial interest (this does not have to be the least restrictive mean, but rather must be a reasonable fit)

Question 14

Solicitation of Victims

Answer 14

Supreme Court has held that a law barring the solicitation of accident victims for a limited period of time following an accident is narrowly tailored to serve the state’s substantial interest in protecting the privacy of the victims.

Question 15

Anti-Commandeering under the Tenth Amendment

Answer 15

Congress may not force state or local governments to create or enforce laws. They may encourage states to pass certain laws by conditioning receipt of federal funding on passing laws

Question 16

Appellate Jurisdiction

Answer 16

The Supreme Court has complete discretion to hear cases that come to it by writ. These include: (1) cases from the highest state court where the constitutionality of a federal statute, federal treaty, or a state statute is called into question or (2) a state statute allegedly violates federal law. This also includes all cases from federal courts of appeals.

Question 17

Supreme Court Review of State Decisions

Answer 17

The Court may review decisions from whether a state court has reached a decision that is not in conformity with the US Constitution, but it may not review state court decisions that merely adjudicate questions of state law (decided on independent and adequate state grounds). This would make that opinion advisory.

Question 18

Commerce Clause

Answer 18

Congress has the power to regulate interstate commerce. This includes: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, (3) and activities that have a substantial effect on interstate commerce.

Congress cannot compel activity.

Question 19

Eleventh Amendment

Answer 19

Bars any federal suit against any one of the states by private citizens or foreign governments. However, states can be sued by the US government. The 11th amendment typically only bars suits involving damages, not injunctive relief.

Exceptions: (1) consent, (2) they are a local government and not a state, (3) they are sued by another state or the federal government, (4) bankruptcy proceeding, (5) the suit is brought against a state official for personal damages or injunction, (6) congress removed the immunity under the 14th amendment Equal Protection

Question 20

Necessary and Proper Clause

Answer 20

Congress has the power to make all laws necessary and proper for caring into execution any power granted to any branch of federal government. So long as the means is rationally related to the constitutionally-specified ends, then the means are constitutional.

Question 21

Obscenity

Answer 21

Unprotected speech includes obscenity. Obscenity is defined as a description or depiction of sexual conduct that the average person would find: (1) appeals to the prurient interest in sex based on contemporary community standards, (2) portrays sex in a patently offensive way based on contemporary community standards, and (3) does not have any serious literary, artistic, political or scientific value based on national reasonable person standards

• Nudity, porn, and dirty words are not obscene
• Person can have obscene material in home for private use
• Child porn is obscene and any visual depictions of sex involving minors can be prohibited

Question 22

Speech and Debate Clause

Answer 22

Members of congress are shielded from civil or criminal suits relating to their legislative actions (their conduct and the motivation behind it) and grand jury investigations relating to those actions. This immunity extends to aides who engage in acts that would be immune if performed by a legislator.

Question 23

Bill of Attainder

Answer 23

a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct

Question 24

Original Jurisdiction

Answer 24

Cases and controversies (1) affecting public ambassadors, public ministers, and consuls; (2) In which the US is a party; or (3) Between two or more states

Question 25

Standing

Answer 25

(1) injury-in-fact, (2) causation, and (3) redressability

Question 26

Injury-in-fact

Answer 26

must be concrete and particularized, actual and imminent, and not conjectural or hypothetical

Question 27

Third-Party Standing

Answer 27

a claimant with standing can assert the rights for a third party if: (1) it is difficult for the third party to assert their own rights, or (2) a close relationship exists between the third party and the claimant in that the injury suffered by the plaintiff adversely affects the relations with the third party

Question 28

Organization Standing

Answer 28

organization can have standing to bring suit on behalf of its members if: (1) there is an injury in fact to the members, (2) the members’ injury is related to the organization’s purpose, and (3) individual member participation in the lawsuit is not required

Question 29

Advisory Opinion

Answer 29

federal courts cannot issue decisions that lack (1) an actual dispute between adverse parties, or (2) a legally binding effect

Question 30

Mootness

Answer 30

there must be an actual, live controversy. look for whether the harm is ongoing or likely to be repeated to the plaintiff or others in the future. Exceptions to when a case is moot include: (1) capability of repetition, (2) defendant voluntarily stops the alleged harm but can resume at any time, or (2) the case is a class action with at least one live claim

Question 31

Ripeness

Answer 31

In order to defeat ripeness, the plaintiff must allege that she (1) already suffered a harm, (2) is faced with a specific present harm, or (3) is under a threat of specific future harm

Question 32

Political Question Doctrine

Answer 32

Cannot decide issues that are constitutionally committed to another branch or are inherently incapable of judicial resolution. However, when it comes to the constitutionality of a federal statute concerning foreign affairs, then the court may review that.

Question 33

Abstenation

Answer 33

federal courts can abstain from hearing and issue when the disposition rests on an unsettled question of state law.

Question 34

Congress War Powers

Answer 34

Power to declare war and raise armies and provide for and maintain a navy

Question 35

Congress Treaty Powers

Answer 35

Ratifies and confirms treaties and ambassadors

Question 36

Bankruptcy Power

Answer 36

congress has the power to establish uniform laws on the subject of bankruptcies throughout the united states

Question 37

Investigatory Power

Answer 37

Broad implied power to investigate to secure information for potential legislation or other official action. Congress can subpoena presidential personal information if it advances a legitimate legislative interest. Witness rights for Investigation → (1) 5A privilege against self-incrimination; (2) elicited oral or written testimony must be pertinent information; (3) witnesses generally get procedural due process (right to counsel, right to cross); (4) the witness can be held in contempt for refusing to appear

Question 38

Property Powers

Answer 38

Dispose of and make rules for territories and other properties in the united states

Question 39

Postal Powers

Answer 39

Power to establish post offices and post roads. Classify and place reasonable restrictions on use of the mails but may not deprive any citizens or group of citizens from general mail privilege This gives congress a postal monopoly in that no one can compete with the federal postal service unless congress consents

Question 40

Power Over Citizenship

Answer 40

Establish uniform rules of naturalization and denaturalization which give plenary powers over aliens. Aliens have no right to enter the US and can be denied based on their political beliefs . No taking away of citizenship by a native-born or naturalized citizen without their consent.

Question 41

Patent and Copyright Powers

Answer 41

Congress has control of the issuance of patents and copyrights.

Question 42

Major Question Doctrine

Answer 42

When the delegation is broad and the agency claims to be exercising the broad power to adopt regulations that have a extraordinary economic and political significance, then the court will consider: (1) whether the agency has historically asserted such power, and (2) whether there is clear congressional authorization for the claimed power

Question 43

Immunity to Congress

Answer 43

Conduct that occurs in the regular course of federal legislative process and the motivation behind that conduct are immune from prosecution. This immunity extends to aides who engage in conduct that would be immune for the legislator. Exceptions: taking bribes, speeches and publications outside Congress, or defamation using a statement originally made in congress

Question 44

President's Power as Chief Executive

Answer 44

Three part division for how to weigh executive powers v. legislative powers from Justice Jackson’s concurrence in the Steel Seizure Cases: Express or Implied Authorization from Congress (aka at his maximum) → presumptively valid Absent grant or denial of authority from congress (aka the twilight zone) → valid if comes from article II alone and not impede on other branches Incompatible with express or implied authority from Congress (aka at its lowest ebb) → invalid unless law enacted by Congress was unconstitutional

Question 45

Procedure to pass a law

Answer 45

Bicameralism + Presentment President can then veto or pass bill as a whole. If veto, then ⅔ of both houses can can override the veto. If no response within 10 days (excepting Sundays), then bill is automatically vetoed if congress is not in session (i.e., a pocket veto), or if they are in session then the bill automatically becomes a law

Question 46

President Appointment Powers

Answer 46

With the advice and consent of the senate, president appoints ambassadors, SC justices, and other officers of the US. Senate can give the president the sole power to appoint inferior officers (Independent counsel/special prosecutor are inferior) If the senate is in recess, then the president can make appointments for vacancy without senate approval during the recess of sufficient duration

Question 47

President Removal Powers

Answer 47

President can remove high level, purely executive officers at will and without any interference from Congress. Congress cannot prevent the president from removing the head of an independent agency if that person is the sole director and has significant executive power Congress can limit the president’s power to remove all other executive appointees

Question 48

Pardon Power

Answer 48

Can grant pardons for all federal offenses but not for impeachment or for civil contempt. This CANNOT be limited by congress

Question 49

President War Powers

Answer 49

Can send military out without the declaration of war by congress in order to protect our people. This is generally not reviewable as a political question.

Question 50

President Treaty Power

Answer 50

President can enter into treaties with approval from ⅔ vote of senate.

Question 51

Executive Agreement

Answer 51

Signed by the president and the head of a foreign country. This does not need senate approval.

Question 52

Executive Privilege

Answer 52

The executive privilege is not absolute. If there is a need for presidential communications/documents for a criminal proceeding, then they should be made available to the prosecution. Personal documents of the president are not privileged.

Question 53

Executive Immunity

Answer 53

Absolute immunity of civil damages from acts committed within official responsibilities while in office. No immunity for acts committed prior to taking office.

Question 54

Impeachment

Answer 54

The president, vice president, and all civil officers of the US are subject to impeachment (the bringing of charges) Treason, bribery, or other high crimes and misdemeanors Need a majority vote by the House to bring the impeachment charges, and then need ⅔ vote by the senate to convict and remove from office

Question 55

Tenth Amendment

Answer 55

Powers not delegated to the US by the Constitution, nor prohibited to the states, are reserved for the states or the people. This includes police powers for safety, health, and general welfare. Remember the rules for anti-commandeering and taking and spending with conditions.

Question 56

State Taxing the Federal Government

Answer 56

Cannot directly tax federal government without congressional consent Can indirectly and non-discriminatorily tax federal government or its property if it does not unduly burden the federal government States cannot regulate activities of the federal government unless congress consents

Question 57

States Taxing on Interstate Commerce

Answer 57

Consider discrimination and undue burden under the DCC. Use taxes --> on the user of goods purchased out of state are generally valid so long as the use tax rate is not higher than the sales tax rate. Sales taxes --> on the seller for selling goods in the state are generally valid if there is a substantial nexus between the taxpayer and the taxing state Ad Valorem Property taxes are generally valid and may only be taxed once the goods are in halt in a state and cannot be taxed on goods just passing through the state States can put doing business taxes on a company if there is a substantial nexus between the activity and the state, the tax is fairly apportioned, does not discriminate against interstate commerce, and fairly relates to the services provided in the state

Question 58

States Taxing Foreign Commerce

Answer 58

States cannot tax imported goods or commercial activity connected with imported goods without congressional consent States can also not tax goods after they enter the export system

Question 59

Exceptions to Dormant Commerce Clause

Answer 59

Congressional approval of the discriminatory regulation/activity. The state is acting as a market participant and can therefore favor who they want (consider Privileges and Immunities if this is the case)

Question 60

Preemption (Types)

Answer 60

Express --> he federal law expressly preempts the state law Implied --> clear congressional intent to preempt state law Field Preemption → the federal law occupies the whole field and congress has left no room for the states to supplement the federal regulation Conflict Preemption → compliance with both laws is physically impossible Obstacle Preemption → the state law is an obstacle and interferes with the achievement of a federal objective of congress

Question 61

Qualifications Clause

Answer 61

the necessary qualifications to serve in congress cannot be altered by congress or the states

Question 62

Twenty-first Amendment

Answer 62

Gives states wide latitude over the importations of liquor and the conditions under which liquor is sold or used within the state, but watch for discrimination under the commerce clause

Question 63

Incorporation of the Bill of Rights

Answer 63

Today we have near total incorporation of the bill of rights. A right is incorporated if it is so fundamental to the scheme of liberty and justice and lies at the base of our civil and political institutions. Those not incorporated: 3A → prohibition against quartering troops in a person’s home 5A → right to a grand jury indictment in a criminal case 7A → right to jury in civil cases

Question 64

State Action

Answer 64

Act infringing on individual rights must be by a state actor (i.e., the government or some agency/official acting under the color of law) or by some private individual who performs exclusive publish functions or has significant state involvement in their activities. Public Functions --> running a town or running a public election Significant state involvement --> needs some sort of affirmative authorization, encouragement, or facilitation by the state

Question 65

Fifteenth Amendment

Answer 65

states and federal government cannot deny any citizen the right to vote based on color or race

Question 66

Contracts Clause

Answer 66

state legislation is limited from enacting laws that retroactively impair contract rights. Private contracts → substantial impairment unless legislation is narrowly tailored to promote an important and legitimate public interest Public contracts → legislation must be narrowly tailored to promote an important and legitimate public interest - NO substantial impairment if state reserved power to revoke, alter, or amend - State cannot be obligated to refrain from exercising its police powers - The law should not be an unnecessarily broad repudiation of contract obligations

Question 67

Ex Post Facto

Answer 67

state and federal government cannot pass legislation that retroactively alters criminal law in a substantially prejudicial manner for the purpose of punishing some person for a past activity

Question 68

Liberty

Answer 68

loses significant freedom of action or denied freedom provided by Constitution or statute; BUT NOT reputation. Examples of liberty interest: involuntary commitment, loss of significant employment or associational opportunities, exercising of fundamental rights

Question 69

Property (under DP)

Answer 69

personal, real, or benefits with a reasonable expectation of continued receipt. Examples of Property interest: public education when attendance is required, welfare benefits

Question 70

Substantive Due Process

Answer 70

Apply if law affects ALL people If a law limits a fundamental right, strict scrutiny applies (the law must be necessary to achieve a compelling government interest) All other cases, apply rational basis review (the law is rationally related to a legitimate government purpose)

Question 71

Fundamental right to travel

Answer 71

Right to travel state to state and be treated equally after moving into a new state Note: International travel is not a fundamental right

Question 72

Right to Privacy

Answer 72

- Upbringing of children - Right to reproduce - Right to birth control - Right to marry (interracial, gay, prison inmates)] - Right to consensual sex (all genders) - Right of family members to live together - RIGHT TO ABORTION IS NO LONGER AND IS NOW RESERVED TO THE STATES TO DECIDE

Question 73

Right to Vote

Answer 73

- Does not count for restrictions based on residence, age, and citizenship - Right to vote or hold office based on property ownership is usually invalid (unless special purpose election) - Reasonable time periods of residency usually valid - May require showing of ID - Poll taxes are unconstitutional (See 24th amendment) - Criminal voting and ballots for prisoners → minimal scrutiny - NO racial gerrymandering → cannot draw lines of voting district based on race unless it’s necessary to achieve a compelling government interest

Question 74

One person, one vote

Answer 74

state and local need substantially equal districts and congressional need almost exact mathematical equality

Question 75

Equal Protection

Answer 75

apply when depriving a person or class Suspect (race, national origin, or alienage in state and local) --> strict scrutiny Exception: alienage discrimination for self-governing then do rational basis (voting, jury, holding office, police, teacher) Quasi-suspect (gender or legitimacy) --> intermediate scrutiny All other classes (disability, alienage in federal, wealth, age) --> rational basis

Question 76

Affirmative Action

Answer 76

Race in universities --> Compelling interests can be (1) remedying past discrimination or (2) promoting diversity Can consider race as a factor for admission; quotas likely not narrowly tailored Promoting diversity is not a compelling interest in primary and secondary schools

Question 77

Scope of Speech

Answer 77

expression = intend to convey and reasonably likely to be perceived as message

Question 78

Content-based regulations

Answer 78

apply strict scrutiny

Question 79

Content-neutral regulations

Answer 79

intermediate scrutiny

Question 80

Imminent Lawless Action

Answer 80

not protected. intended and likely to induce imminent lawless action

Question 81

Fighting words

Answer 81

not protected. personally abusive that are likely to incite immediate physical retaliation in the average person likely going to be overbroad.

Question 82

True Threats

Answer 82

not protected. words intended to convey to someone a serious threat of bodily harm

Question 83

Defamatory Speech (public figure or official)

Answer 83

in order to collect damages, the plaintiff public official or figure must show (1) statements relate to the individual speaking, (2) falsity, and (3) actual malice. Public official → holding or running for elected office, or public employee is position of importance Public figure → assumed role of prominence in society, achieved pervasive fame or notoriety, or (2) thrust themselves into public controversy to influence resolution

Question 84

Defamatory speech (private figure)

Answer 84

in order to get damages for a defamatory statement on matter of public concern, for (1) actual damages, the plaintiff must show negligence, and for (2) punitive damages, she must show actual malice.

Question 85

Traditional/Designated Public Forum

Answer 85

Content-based → strict Content neutral → intermediate + leaving ample alternative channels

Question 86

Limited/Non-Public Forum

Answer 86

Viewpoint-based → strict Viewpoint-neutral → reasonably related to a legitimate government purpose

Question 87

Speech in Public Schools

Answer 87

Engaging in personal speech on campus → can sensor if disruptive. However, can ban speech promoting illegal drug use Student speech off campus → limited restrictions. Can prevent bullying, cheating, and threats Test: safety concerns outweigh speech interests Speech on campus concerning education --> Restrictions must be reasonably related to a legitimate educational objective

Question 88

Speech in Public Employment

Answer 88

Unprotected --> Workplace speech on matters of private concern if disruptive; Speech pursuant to official duties Maybe Protected --> Speech as a private citizen on matters of public concern determined by balancing the value of the speech vs the government’s interest

Question 89

Overbreadth/Vagueness

Answer 89

Vaguness - Due process invalidates laws that do not give reasonable notice of what is prohibited overbroad - Regulation of speech is facially invalid if it punishes substantially more speech than necessary (look for "all" or "any")

Question 90

Prior Restraint

Answer 90

Licensing requirements or injunctions Content-based → strict scrutiny Content-neutral → intermediate Prior restraints must have safeguards, including: (1) well-defined standards, (2) it must be promptly sought, and (3) there must be prompt and final judicial determination of the restraint’s validity

Question 91

Freedom of Press

Answer 91

- Right to publish truthful information regarding a matter of public concern - Right to attend trials but can be outweighed by an overriding and compelling interest - No right to interview prisoners of their choice or inspect prison grounds - Indecent speech on airwaves can be more strictly protected than other types of press - The SC has consistently held that that freedom of the press does not exempt press activities from laws of general application such as contract law

Question 92

Government Speech

Answer 92

Government speech and government funding speech will be upheld if it is rationally related to a legitimate government interest I.e., state of the union, statue in park Limitations: - Government cannot require people to speak or express - When using the spending conditions under article I powers, cannot limit/compel speech

Question 93

Freedom of Association

Answer 93

Government may neither prohibit politically unpopular group nor unduly burden a person’s right to belong to those groups Content-based → strict scrutiny Content-neutral w/ incidental burden → intermediate scrutiny

Question 94

Limitations on Campaign Contributions

Answer 94

- Government can limit how much is given to single candidate, but not how much is given to parties or to candidates in total during an election - Cannot limit how much a candidate spends on their campaign

Question 95

Free Exercise

Answer 95

Courts cannot prohibit the freedom to freely exercise a religion. Courts can question the sincerity of a belief but not it’s truthfulness Discriminatory laws without general applicability on basis of religion → strict scrutiny Neutral and generally applicable → no free exercise problem Exceptions: - Exemption from suits for employment discrimination by ministers in favor of their religion - State cannot refuse to give unemployment benefits to people who quit their jobs for religious reasons - Amish get an exemption to not have mandatory school attendance until the age of 16

Question 96

Establishment Clause

Answer 96

Prohibits the government sponsorship of religion through aiding or formally establishing religion Look for: (1) neutrality toward religion, (2) whether the government is coercing individuals to exercise, (3) historical practices and tradition, and (4) the founders intent.

Question 97

Second Amendment

Answer 97

Individuals have the right to keep and bear arms. Government must show regulation is consistent with country’s historical tradition of regulation Constitutional: background checks, review of mental health records, training requirements, and bans in sensitive places Unconstitutional: Trigger lock requirement and ban of handgun possession in home