Constitutional Law

Question 1

What is the 10th Amendment?

Priority: High

Answer 1

Under the 10th Amendment, all powers not granted to the federal government are reserved to the states.

Question 2

How may Congress regulate state activity?

Priority: High

Answer 2

As long as Congress is exercising one of its enumerated powers, Congress may generally regulate the states, with certain limits.

Question 3

What is the anti-commandeering doctrine?

Priority: High

Answer 3

The federal government cannot require states to enact specific legislation or require state officials to assist in the enforcement of federal statutes regulating private individuals.

Question 4

How may Congress use the spending power?

Priority: Medium

Answer 4

Congress has the power to spend for the common defense and general welfare of the United States.

This power is interpreted broadly and allows Congress to attach conditions on States receiving federal funds.

Question 5

What are the requirements for Congress to place a condition on states receiving federal funds?

Priority: High

Answer 5

First, Congress must spend for the “general welfare,” which amounts to any public purpose.

Second, the condition must be unambiguous.

Third, the condition must relate to “the federal interest in particular national projects or programs.”

Fourth, the condition must not induce the states to act in an unconstitutional manner.

Finally, the condition may not exceed the point at which “pressure turns to compulsion.”

Question 6

How can Congress avoid the prohibitions on commanding state legislatures?

Priority: Medium

Answer 6

Although Congress cannot command state legislatures, it can encourage state action through the use of the taxing and spending powers.

Question 7

What is the state action requirement for alleging a constitutional violation?

Priority: High

Answer 7

To trigger constitutional protections, state action is required. Generally, the conduct of private individuals or entities do not constitute state action as is not protected by the Constitution.

A private person’s conduct must constitute state action in order for these protections to apply.

Question 8

When may private conduct be considered state action?

Priority: High

Answer 8

State action may be considered to exist when a private party carries out a traditional public function or if there is significant state involvement in the activities.

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

Question 9

How is gender discrimination considered?

Priority: High

Answer 9

Discrimination based on gender is discrimination based on a “quasi-suspect” classification and so is judged under the intermediate scrutiny standard.

Question 10

How does the court apply intermediate scrutiny?

Priority: High

Answer 10

In applying intermediate scrutiny, the burden is on the state to show that its different treatment is SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT INTEREST.

Question 11

When will different treatment of genders not violate the equal protection clause?

Priority: High

Answer 11

Different treatment of the genders by the government does not violate the equal protection clause if the state can show that it has an EXCEEDINGLY PERSUASIVE JUSTIFICATION for the different treatment and that the separate facilities offered are SUBSTANTIALLY EQUIVALENT.

Question 12

How is the first amendment applied to the states, and what does it protect?

Priority: High

Answer 12

The First Amendment is applicable to the states through the Fourteenth Amendment and protects the freedom of speech and expressive activites that constitute speech as well as the freedom not to speak.

For example, the Supreme Court has held that a child in a public school has the right not to recite the Pledge of Allegiance.

Question 13

What is proteced speech under the First Amendment

Priority: High

Answer 13

The First Amendment protects freedom of speech. Protected speech can include written, oral, and visual communication, as well as activities such as picketing and leafleting.

Question 14

How does the forum affect the ability to regulate speech?

Priority: High

Answer 14

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

Question 15

What is a traditional public forum?

Priority: High

Answer 15

A traditional public forum is one that is historically associated with expression, such as sidewalks, streets, and parks.

Question 16

What may the government regulate in a traditional public forum?

Priority: High

Answer 16

In a traditional public forum, the government may only regulate speech if the restrictions: (1) are content-neutral to both subject matter and viewpoint, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication.

Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest.

Question 17

When may the government regulate content based speech in a public forum?

Priority: Medium

Answer 17

The government cannot regulate speech in public forums based on content unless it satisfies strict scrutiny by being narrowly tailored to achieve a compelling interest, and is the leaset restrictive means.

Question 18

When is a regulation content neutral?

Priority: High

Answer 18

A regulation is content neutral when it applies to all conduct regardless of the content.

Question 19

What is the equal protection clause, and who does it apply to?

Priority: High

Answer 19

The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This clause applies only to states and localities.

Question 20

How are laws that classify on the basis of age reviewed?

Priority: High

Answer 20

Laws classifying on the basis of age are reviewed under the rational basis standard.

Question 21

When does a law pass rational basis review?

Priority: High

Answer 21

A law passes the rational basis standard of review if it is rationally related to a legitimate government interest.

It is not required that there is actually a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link.

Laws are presumed valid under this standard.

Question 22

What powers does the federal government have generally?

Priority: High

Answer 22

The federal government may exercise only those powers specifically enumerated by the Constitution.

Question 23

What is the fourteenth amendment enabling clause?

Priority: Medium

Answer 23

The Fourteenth Amendment Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones.

Question 24

What is required for a law enforcing the 14th, 13th, and 15th amendments to be valid?

Priority: Medium

Answer 24

In enforcing these amendments there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end.

Its enforcement power would not stretch to prohibit a law that does not violate the Constitution.

Question 25

How is federal judicial power restricted by article 3?

Priority: Medium

Answer 25

Article III, Section 2 restricts federal judicial power to cases and controversies. A federal court cannot decide a case unless the plaintiff has standing to bring it.

Question 26

When does a plaintiff have standing?

Priority: Medium

Answer 26

To have standing, a plaintiff bears the burden of establishing three elements: (1) injury in fact; (2) the injury was fairly traceable to the challenged action; and (3) the relief requested must prevent or redress the injury.

Question 27

What will qualify as an injury for standing?

Priority: Medium

Answer 27

Standing requires a concrete and particularized injury, even in the context of a statutory violation.

The injury need not be physical or economic.

An injury such as the invasion of privacy may be a sufficiently concrete injury in itself even when extensive damages cannot be proved.

Question 28

What is the market participant exception?

Priority: High

Answer 28

A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator.

If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.

Question 29

What is the Dormant commerce clause, and what are the limitations on states?

Priority: High

Answer 29

The Dormant Commerce Clause is a doctrine that limits the power of states to legislate in ways that impact interstate commerce.

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: (1) discriminate against out-of-state commerce, (2) unduly burden interstate commerece, or (3) regulate extraterritorial (wholly out of state) activity.

Question 30

When does a state regulation discriminate against out of state commerce?

Priority: High

Answer 30

A state or local regulation discriminates against out of state commerce if it protects local economic interests at the expense of out of state competitors.

Question 31

When can a law that does not discriminate against out of state commerce be unconstitutional?

Priority: High

Answer 31

A state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce.

Question 32

How do courts consider whether a regulation imposes an undue burden on inteerstate commerce?

Priority: High

Answer 32

The courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives.

Question 33

When can a discriminatory regulation be upheld?

Priority: High

Answer 33

If a state or local regulation, on its face or in its practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that: (1) an important local interest is being served, and (2) no other nondiscriminatory means are available to achieve that purpose.

Question 34

What is the 11th amendment?

Priority: High

Answer 34

The Eleventh Amendment is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court.

It immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state.

There are a few notable exceptions, including when the state waives its immunity under the Eleventh Amendment.

Question 35

Can a private party seek an injunction against a state official?

Priority: Medium

Answer 35

When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law.

Question 36

When does a regulation constitute a per se taking?

Priority: High

Answer 36

Generally, a governmental 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 taking, such as when a regulation results in a permanent physical occupation of the property by the government or a third party or when a regulation results in a permanent total loss of the property’s economic value.

Question 37

What are the penn-central factors to determine if a regulation is a taking? (when it does not constitute a per se taking)

Priority: High

Answer 37

The following factors are considered:

(1) the economic impact of the regulation on the property owner,

(2) the extent to which the regulation interferes with the owner’s reasonable, investment backed expectations regarding use of the property, and

(3) the character of the reulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

Question 38

What is a land use exaction?

Priority: High

Answer 38

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary permits.

Question 39

When does a land use exaction violate the takings clause?

Priority: High

Answer 39

A land use exaction does not violate the Takings Clause if there is

(1) an essential nexus between legitimate state interests and the conditions imposed on the property owner (the conditions substantially advance a legitimate state interest), and

(2) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.

Question 40

How does the government determine whether there is a rough proportionality for a land use exaction?

Priority: Medium

Answer 40

In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.