constitutional law

Question 1

11th Amendment Limitations

Answer 1

• Citizens of one state cannot sue another state in federal court and cannot sue their own state in federal court
• Abrogation—Congress may expressly repeal state immunity if acting to enforce rights under the 13th, 14th, and 15th Amendments

Question 2

11th Amendment Limitations

Answer 2

o Citizens of one state cannot sue another state in federal court and cannot sue their own state in federal court
o Abrogation—Congress may expressly repeal state immunity if acting to enforce rights under the 13th, 14th, and 15th Amendments

Question 3

Individual Standing

Answer 3

1) Injury in fact;
2) Causation; and
3) Redressability

Question 4

Organization Standing

Answer 4

1) Individual members have standing
2) Claim is related to the purpose of the organization; and
3) The individual members are not necessary to adjudicate the claim

Question 5

Commerce Clause

Answer 5

Congress has power to regulate:
1) Channels of interstate commerce
2) Instrumentalities of interstate commerce
3) Activities that have a substantial effect on interstate commerce
*Aggregation, easy to meet

Question 6

Spending Power

Answer 6

• Congress can condition federal funds to states and require states to implement certain regulations.
• Permitted as long as the condition is related to the purpose of the funds
• Condition must not be coercive (condition is excessive)

Question 7

Delegation of Legislative Powers

Answer 7

Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards

Question 8

Express Preemption

Answer 8

 The federal law explicitly states that it is the only law allowed in that area.
 Any state law addressing that issue is invalid.

Question 9

Implied Preemption

Answer 9

1) Congress passes a federal law intending to “occupy the field”;
2) The state law conflicts directly with federal law; or
3) The state law conflicts indirectly with federal law
**A state can pass MORE stringent laws than the federal law, so long as they do not conflict.

Question 10

Privileges and Immunities Clause

Answer 10

• Prohibits states from discriminating against nonresidents, unless it is NECESSARY to achieve an IMPORTANT government interest
  **Only applies to citizens, not to corporations or noncitizens

Question 11

10th Amendment and Commandeering

Answer 11

• All powers not expressly given to the federal government are reserved to the states.
• Federal government cannot “commandeer” state legislatures and force them to pass
  legislation.

**Valid exercise of Spending Clause is NOT commandeering

Question 12

Dormant Commerce Clause, Generally

Answer 12

• The Commerce Clause enables Congress to regulate interstate commerce.
• Under the Dormant Commerce Clause, a state may not discriminate against out of state commerce or unduly burden interstate commerce.

** typical fact pattern will have a plaintiff who claims that a state’s law is invalid under the Commerce Clause. This will require you to discuss the
Dormant Commerce Clause and analyze whether the state has exceeded its powers by passing a law that negatively impacts interstate commerce

Question 13

Dormant Commerce Clause, Discrimination

Answer 13

A State law cannot discriminate against out-of-state commerce
 Either FACIAL or IMPACT discrimination
 If a state statute discriminates against out-of-state commerce, the state must show:
a) It has an important state interest; and
b) There is no other non-discriminatory means available to achieve that interest
 Market Participant Exception—if state is acting as a buyer or seller, it can favor local business

Question 14

Dormant Commerce Clause, Unduly Burdens

Answer 14

 If a statute is not discriminatory, the law may still be invalid if it causes an “undue burden” on interstate commerce.

 A court will balance:
a) The purpose of the statute;
b) The burden on interstate commerce; and
c) Whether there are less restrictive alternatives

Question 15

Takings Clause

Answer 15

look at outline lol

Question 16

Due Process Clause, Procedure

Answer 16

• The government shall not deprive a person of life, liberty, or property without due process of law.
• Process includes
  -notice
  -a hearing
  -a neutral decisionmaker
  -and right to an appeal

Question 17

Due Process Clause, Factors for Amount of Due Process

Answer 17

1) Interest affected—life, liberty (including fundamental rights), or property;
2) Value of additional safeguards; and
3) Burden or cost of additional process

Question 18

Due Process, Standards of Review

Answer 18

Whether the government’s action impermissibly infringes on an individual’s rights

1) Strict Scrutiny: fundamental rights (life, liberty, property, voting, travel, privacy)
2) Rational Basis: non-fundamental rights

Question 19

Equal Protection Clause, Generally

Answer 19

• Involves gov treating classes of people differently
• Different standards of review to determine validity of law (strict scrutiny, etc.)

Question 20

Equal Protection, Strict Scrutiny

Answer 20

 Applies to any law involving classifications based on race, ethnicity, and national origin or a law that implicates fundamental rights
 Gov has burden, must show it is:
a) The least restrictive means
b) To achieve a compelling gov interest

Question 21

Equal Protection, Intermediate Scrutiny

Answer 21

 Applies to laws involving gender and non-marital children
 Gov has burden, must show it is:
a) Substantially related
b) To an important gov interest
**For gender, must show “exceedingly persuasive justification”

Question 22

Equal Protection, Rational Basis

Answer 22

 Applies to all other rights and classifications (e.g., age and wealth)
 Plaintiff has burden, must show the law is not:
a) Rationally related
b) To a legitimate government interest

Question 23

Enabling Clause

Answer 23

Under the 14th Amendment, Section 5—Congress may pass legislation to enforce equal protection and due process rights (overriding state statutes)

Question 24

FOS, Symbolic Speech

Answer 24

Regulation is valid if:
1) It furthers an IMPORTANT government interest;
2) The interest is unrelated to the suppression of ideas; and
3) The burden on speech is no greater than necessary

Question 25

FOS, Overbreadth

Answer 25

A statute regulates more speech than necessary to protect a compelling government interest

Question 26

FOS, Vagueness

Answer 26

A statute fails to provide a person of ordinary intelligence with fair notice of what is prohibited

Question 27

FOS, Prior Restraint

Answer 27

• A prior restraint prohibits speech before it occurs
• Must seek to avoid a particular harm
• Must have procedural safeguards in place
   Standards must be narrowly drawn, reasonable, and definite

Question 28

FOS, Content-Based regulation

Answer 28

Government must show the regulation is:
a) Necessary to achieve;
b) A compelling governmental interest; and
c) Narrowly tailored to meet that interest

Question 29

FOS, Content-Neutral regulation

Answer 29

Intermediate Scrutiny

Question 30

FOS, Content-Neutral time/place/manner regulation

Answer 30

Depends on type of Forum

Question 31

FOS, Commercial Speech

Answer 31

• Less protected
• Commercial speech may be prohibited if is false, misleading, or unlawful
• Protected commercial speech can only be regulated if:
  a) The government interest is substantial;
  b) The regulation directly advances the interest; and
  c) The regulation is narrowly tailored

Question 32

FOS, Obscenity

Answer 32

• Unprotected
• Average person, applying contemporary community standards, finds the
  speech:
  
  • Appeals to the prurient interest;
  • Depicts sexual conduct in a patently offensive way; and
  • Lacks serious literary, artistic, political, or scientific value

Question 33

FOS, Incitement to Violence

Answer 33

• Unprotected
• Advocates use of force or unlawful action if:
  
  • Directed to inciting or producing imminent lawless action; and
  • Is likely to incite or produce such action (i.e., creates a clear and present danger)

Question 34

FOS, Fighting Words

Answer 34

• Unprotected
• Words that, by their very nature, likely to incite an immediate breach of the peace

Question 35

FOS, Traditional Public Forum

Answer 35

 Content-based regulations are subject to strict scrutiny.
 Content-neutral regulations are subject to the time, place, and manner test; must be:
* Narrowly tailored;
* To serve a significant government interest; and
* Leave open ample alternative channels for communication

Question 36

FOS, Designated Public Forum

Answer 36

 Not historically used for speech-related activities but has been opened for such use
 Content-based regulations are subject to strict scrutiny.
 Content-neutral regulations are subject to the time, place, and manner test; must be:
* Narrowly tailored;
* To serve a significant government interest; and
* Leave open ample alternative channels for communication

Question 37

FOS, Non-public forum

Answer 37

 Government can regulate speech if:
a) The regulation is viewpoint-neutral; and
b) Reasonably related to;
c) A legitimate government interest
 Government can regulate content in a non-public forum, so long as it is viewpoint neutral

Question 38

Establishment Clause

Answer 38

Prohibits the government from establishing a religion, preferring a particular religion over
another, or preferring religion over non-religion

Question 39

EC, Facially Religious Preference

Answer 39

If statute shows a preference to one religion over another (or to religion over non-religion), Strict Scrutiny applies

Question 40

EC, Facially Neutral Statute

Answer 40

 A statute might have the EFFECT of favoring religion
 Look at the “historical practices and understandings” of the environment in which the preference is occurring
 Ask whether it appears that the government is establishing a religion, favoring one over the other, or preferring religion over non-religion
**If so, then strike down

Question 41

Free Exercise Clause

Answer 41

Includes the freedom to 1) Believe and the freedom to 2) act (conduct)

• Belief
   A person’s beliefs are absolutely protected.
   A person’s belief must be genuine
• Conduct
   Laws that intentionally target religious conduct are subject to strict scrutiny.
   Laws that are generally applicable, but happen to impact religion, are subject to the rational basis test.